[Title 24 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 24
Housing and Urban Development
________________________
Parts 0 to 199
Revised as of April 1, 2018
Containing a codification of documents of general
applicability and future effect
As of April 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 24:
SUBTITLE A--Office of the Secretary, Department of
Housing and Urban Development 3
SUBTITLE B--Regulations Relating to Housing and Urban
Development
Chapter I--Office of Assistant Secretary for Equal
Opportunity, Department of Housing and Urban
Development 667
Finding Aids:
Table of CFR Titles and Chapters........................ 787
Alphabetical List of Agencies Appearing in the CFR...... 807
List of CFR Sections Affected........................... 817
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 24 CFR 0.1 refers to
title 24, part 0, section
1.
----------------------------
[[Page v]]
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
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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OMB CONTROL NUMBERS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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INCORPORATION BY REFERENCE
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2018
[[Page ix]]
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 Board of Directors of
the Hope for Homeowners Program, and the Neighborhood Reinvestment
Corporation. The contents of these volumes represent all current
regulations codified under this title of the CFR as of April 1, 2018.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 24--HOUSING AND URBAN DEVELOPMENT
(This book contains parts 0 to 199)
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Part
SUBTITLE A--Office of the Secretary, Department of Housing
and Urban Development..................................... 0
SUBTITLE B--Regulations Relating to Housing and Urban Development
chapter i--Office of Assistant Secretary for Equal
Opportunity, Department of Housing and Urban Development.. 100
[[Page 3]]
Subtitle A--Office of the Secretary, Department of Housing and Urban
Development
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Editorial Note: Nomenclature changes to chapter I appear at 59 FR
14092, Mar. 25, 1994.
Part Page
0 Standards of conduct........................ 7
1 Nondiscrimination in federally assisted
programs of the Department of Housing
and Urban Development--effectuation of
Title VI of the Civil Rights Act of 1964 7
3 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 14
4 HUD Reform Act.............................. 31
5 General HUD program requirements; waivers... 38
6 Nondiscrimination in programs and activities
receiving assistance under Title I of
the Housing and Community Development
Act of 1974............................. 132
8 Nondiscrimination based on handicap in
federally assisted programs and
activities of the Department of Housing
and Urban Development................... 139
9 Enforcement of nondiscrimination on the
basis of disability in programs or
activities conducted by the Department
of Housing and Urban Development........ 161
10 Rulemaking: Policy and procedures........... 172
13 Use of penalty mail in the location and
recovery of missing children............ 174
14 Implementation of the Equal Access to
Justice Act in administrative
proceedings............................. 175
[[Page 4]]
15 Public access to HUD records under the
Freedom of Information Act and testimony
and production of information by HUD
employees............................... 182
16 Implementation of the Privacy Act of 1974... 201
17 Administrative claims....................... 214
18 Indemnification of HUD employees............ 231
20 Office of Hearings and Appeals.............. 232
24 Governmentwide debarment and suspension
(nonprocurement)........................ 233
25 Mortgagee Review Board...................... 233
26 Hearing procedures.......................... 239
27 Nonjudicial foreclosure of multifamily and
single family mortgages................. 262
28 Implementation of the Program Fraud Civil
Remedies Act of 1986.................... 270
30 Civil money penalties: certain prohibited
conduct................................. 274
35 Lead-based paint poisoning prevention in
certain residential structures.......... 283
40 Accessibility standards for design,
construction, and alteration of publicly
owned residential structures............ 334
41 Policies and procedures for the enforcement
of standards and requirements for
accessibility by the physically
handicapped............................. 335
42 Displacement, relocation assistance, and
real property acquisition for HUD and
HUD-assisted programs................... 337
43-45
[Reserved]
50 Protection and enhancement of environmental
quality................................. 342
51 Environmental criteria and standards........ 351
52 Intergovernmental review of Department of
Housing and Urban Development programs
and activities.......................... 369
55 Floodplain management and protection of
wetlands................................ 372
58 Environmental review procedures for entities
assuming HUD environmental
responsibilities........................ 385
60 Protection of human subjects................ 405
70 Use of volunteers on projects subject to
Davis-Bacon and HUD-determined wage
rates................................... 423
81 The Secretary of HUD's regulation of the
Federal National Mortgage Association
(Fannie Mae) and the Federal Home Loan
Mortgage Corporation (Freddie Mac)...... 426
[[Page 5]]
84 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, and
other non-profit organizations.......... 470
85 Administrative requirements for grants and
cooperative agreements to State, local
and federally recognized Indian tribal
governments............................. 471
87 New restrictions on lobbying................ 471
91 Consolidated submissions for community
planning and development programs....... 483
92 Home Investment Partnerships Program........ 535
93 Housing trust fund.......................... 620
94-99
[Reserved]
Appendixes A-C to Subtitle A [Reserved]
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PART 0_STANDARDS OF CONDUCT--Table of Contents
Sec. 0.1 Cross-reference to employees ethical conduct standards and
financial disclosure regulations.
Employees of the Department of Housing and Urban Development
(Department) are subject to the executive branch-wide standards of
ethical conduct at 5 CFR part 2635, the Department's regulation at 5 CFR
part 7501 which supplements the executive branch-wide standards, and the
executive branch-wide financial disclosure regulation at 5 CFR part
2634.
5 U.S.C. 301, 7301; 42 U.S.C. 3535(d)
[61 FR 36251, July 9, 1996]
PART 1_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT_EFFECTUATION OF TITLE
VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Application of part 1.
1.4 Discrimination prohibited.
1.5 Assurances required.
1.6 Compliance information.
1.7 Conduct of investigations.
1.8 Procedure for effecting compliance.
1.9 Hearings.
1.10 Effect on other regulations; forms and instructions.
Authority: 42 U.S.C. 2000d-1 and 3535(d).
Source: 38 FR 17949, July 5, 1973, unless otherwise noted.
Sec. 1.1 Purpose.
The purpose of this part 1 is to effectuate the provisions of title
VI of the Civil Rights Act of 1964 (hereafter referred to as the Act) to
the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from the Department of Housing and Urban Development.
Sec. 1.2 Definitions.
As used in this part 1--
(a) The term Department means the Department of Housing and Urban
Development.
(b) The term Secretary means the Secretary of Housing and Urban
Development.
(c) The term responsible Department official means the Secretary or,
to the extent of any delegation of authority by the Secretary to act
under this part 1, any other Department official to whom the Secretary
may hereafter delegate such authority.
(d) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the term State means any one of
the foregoing.
(e) The term Federal financial assistance includes: (1) Grants,
loans, and advances of Federal funds, (2) the grant or donation of
Federal property and interests in property, (3) the detail of Federal
personnel, (4) the sale and lease 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, and (5) any Federal
agreement, arrangement, or other contract which has as one of its
purposes the provision of assistance. The term Federal financial
assistance does not include a contract of insurance or guaranty.
(f) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, organization, or other entity, or
any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program or
activity, or who otherwise participates in carrying out such program or
activity (such as a redeveloper in the Urban Renewal Program), including
any successor, assign, or transferee thereof, but such term does not
include
[[Page 8]]
any ultimate beneficiary under any such program or activity.
(g) The term applicant means one who submits an application,
contract, request, or plan requiring Department approval as a condition
to eligibility for Federal financial assistance, and the term
application means such an application, contract, request, or plan.
Sec. 1.3 Application of part 1.
This part 1 applies to any program or activity for which Federal
financial assistance is authorized under a law administered by the
Department, including any program or activity assisted under the
statutes listed in appendix A of this part 1. It applies to money paid,
property transferred, or other Federal financial assistance extended to
any such program or activity on or after January 3, 1965. This part 1
does not apply to: (a) Any Federal financial assistance by way of
insurance or guaranty contracts, (b) money paid, property transferred,
or other assistance extended to any such program or activity before
January 3, 1965, (c) any assistance to any person who is the ultimate
beneficiary under any such program or activity, or (d) any employment
practice, under any such program or activity, of any employer,
employment agency, or labor organization, except to the extent described
in Sec. 1.4(c). The fact that certain financial assistance is not
listed in appendix A shall not mean, if title VI of the Act is otherwise
applicable, that such financial assistance is not covered. Other
financial assistance under statutes now in force or hereinafter enacted
may be added to this list by notice published in the Federal Register.
Sec. 1.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity to which this part 1 applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program or activity to which this part 1 applies may not,
directly or through contractual or other arrangements, on the ground of
race, color, or national origin:
(i) Deny a person any housing, accommodations, facilities, services,
financial aid, or other benefits provided under the program or activity;
(ii) Provide any housing, accommodations, facilities, services,
financial aid, or other benefits to a person which are different, or are
provided in a different manner, from those provided to others under the
program or activity;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of housing, accommodations, facilities,
services, financial aid, or other benefits under the program or
activity;
(iv) Restrict a person in any way in access to such housing,
accommodations, facilities, services, financial aid, 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 the program or activity;
(v) Treat a person differently from others in determining whether he
satisfies 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, or other benefits provided under the program or activity;
(vi) Deny a person opportunity to participate in the program or
activity through the provision of services or otherwise, or afford him
an opportunity to do so which is different from that afforded others
under the program or activity (including the opportunity to participate
in the program or activity as an employee but only to the extent set
forth in paragraph (c) of this section).
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2)(i) A recipient, in determining the types of housing,
accommodations, facilities, services, financial aid, or other benefits
which will be provided under any such program or activity, or the
[[Page 9]]
class of persons to whom, or the situations in which, such housing,
accommodations, facilities, services, financial aid, or other benefits
will be provided under any such program or activity, or the class of
persons to be afforded an opportunity to participate in any such program
or activity, may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration which have
the effect of subjecting persons to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
or activity as respect to persons of a particular race, color, or
national origin.
(ii) A recipient, in operating low-rent housing with Federal
financial assistance under the United States Housing Act of 1937, as
amended (42 U.S.C. 1401 et seq.), shall assign eligible applicants to
dwelling units in accordance with a plan, duly adopted by the recipient
and approved by the responsible Department official, providing for
assignment on a community-wide basis in sequence based upon the date and
time the application is received, the size or type of unit suitable, and
factors affecting preference or priority established by the recipient's
regulations, which are not inconsistent with the objectives of title VI
of the Civil Rights Act of 1964 and this part 1. The plan may allow an
applicant to refuse a tendered vacancy for good cause without losing his
standing on the list but shall limit the number of refusals without
cause as prescribed by the responsible Department official.
(iii) The responsible Department official is authorized to prescribe
and promulgate plans, exceptions, procedures, and requirements for the
assignment and reassignment of eligible applicants and tenants
consistent with the purpose of paragraph (b)(2)(ii) of this section,
this part 1, and title VI of the Civil Rights Act of 1964, in order to
effectuate and insure compliance with the requirements imposed
thereunder.
(3) In determining the site or location of housing, accommodations,
or facilities, an applicant or recipient may not make selections with
the purpose or effect of excluding individuals from, denying them the
benefits of, or subjecting them to discrimination under any program to
which this part 1 applies, on the ground of race, color, or national
origin; or with the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the Act or this part
1.
(4) As used in this part 1 the housing, accommodations, facilities,
services, financial aid, or other benefits provided under a program or
activity receiving Federal financial assistance shall be deemed to
include any housing, accommodations, facilities, services, financial
aid, or other benefits provided in or through a facility provided with
the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in paragraphs (b) and (c) of this section does not limit the generality
of the prohibition in paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program should take affirmative action to overcome
the effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.
Where previous discriminatory practice or usage tends, on the ground of
race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this part 1
applies, the applicant or recipient has an obligation to take reasonable
action to remove or overcome the consequences of the prior
discriminatory practice or usage, and to accomplish the purpose of the
Act.
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program or activity to which this part
1 applies is to provide employment, a recipient may not, directly or
through contractual or other arrangements, subject a person to
discrimination on the ground of race, color, or national origin in its
[[Page 10]]
employment practices under such program or activity (including
recruitment or recruitment advertising, employment, layoff, termination,
upgrading, demotion, transfer, rates of pay or other forms of
compensation and use of facilities). The requirements applicable to
construction employment under such program or activity shall be those
specified in or pursuant to part III of Executive Order 11246 or any
executive order which supersedes or amends it.
(2) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the ground of race,
color, or national origin in the employment practices of the recipient
or other persons subject to this part 1 tends, on the ground of race,
color, or national origin, to exclude individuals from participation in,
to deny them the benefits of, or to subject them to discrimination under
any program to which this part 1 applies, the provisions of this
paragraph (c) shall apply to the employment practices of the recipient
or other persons subject to this part 1 to the extent necessary to
assure equality of opportunity to, and nondiscriminatory treatment of,
beneficiaries.
Sec. 1.5 Assurances required.
(a) General. (1) Every contract for Federal financial assistance to
carry out a program or activity to which this part 1 applies, executed
on or after January 3, 1965, and every application for such Federal
financial assistance submitted on or after January 3, 1965, shall, as a
condition to its approval and the extension of any Federal financial
assistance pursuant to such contract or application, contain or be
accompanied by an assurance that the program or activity will be
conducted and the housing, accommodations, facilities, services,
financial aid, or other benefits to be provided will be operated and
administered in compliance with all requirements imposed by or pursuant
to this part 1. In the case of a contract or application where the
Federal financial assistance is to provide or is in the form of personal
property or real property or interest therein or structures thereon, the
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the property is
used for a purpose for which the Federal financial assistance is
extended or for another purpose involving the provision of similar
services or benefits, or for as long as the recipient retains ownership
or possession of the property, whichever is longer. In all other cases
the assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the contract or
application. The responsible Department official shall specify the form
of the foregoing assurance for such program or activity, and the extent
to which like assurances will be required of subgrantees, contractors
and subcontractors, transferees, successors in interest, and other
participants in the program or activity. Any such assurance shall
include provisions which give the United States a right to seek its
judicial enforcement.
(2) In the case of real property, structures or improvements
thereon, or interests therein, acquired through a program of Federal
financial assistance the instrument effecting any disposition by the
recipient of such real property, structures or improvements thereon, or
interests therein, shall contain a covenant running with the land
assuring nondiscrimination for the period during which the real property
is used for a purpose for which the Federal financial assistance is
extended or for another purpose involving the provision of similar
services or benefits. In the case where Federal financial assistance is
provided in the form of a transfer of real property or interests therein
from the Federal Government, the instrument effecting or recording the
transfer shall contain such a covenant.
(3) In program receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under any such
property are included as part of the program receiving such assistance,
the nondiscrimination requirements of this part 1 shall extend to any
facility located wholly or in part in such space.
(b) Preexisting contracts--funds not disbursed. In any case where a
contract for Federal financial assistance, to carry
[[Page 11]]
out a program or activity to which this part 1 applies, has been
executed prior to January 3, 1965, and the funds have not been fully
disbursed by the Department, the responsible Department official shall,
where necessary to effectuate the purposes of this part 1, require an
assurance similar to that provided in paragraph (a) of this section as a
condition to the disbursement of further funds.
(c) Preexisting contracts--periodic payments. In any case where a
contract for Federal financial assistance, to carry out a program or
activity to which this part 1 applies, has been executed prior to
January 3, 1965, and provides for periodic payments for the continuation
of the program or activity, the recipient shall, in connection with the
first application for such periodic payments on or after January 3,
1965: (1) Submit a statement that the program or activity is being
conducted in compliance with all requirements imposed by or pursuant to
this part 1 and (2) provide such methods of administration for the
program or activity as are found by the responsible Department official
to give reasonable assurance that the recipient will comply with all
requirements imposed by or pursuant to this part 1.
(d) Assurances from institutions. (1) In the case of any application
for Federal financial assistance to an institution of higher education,
the assurance required by this section shall extend to admission
practices and to all other practices relating to the treatment of
students.
(2) The assurance required with respect to an institution of higher
education, hospital, or any other institution, insofar as the assurance
relates to the institution's practices with respect to admission or
other treatment of persons as students, patients, or clients of the
institution or to the opportunity to participate in the provision of
services or other benefits to such persons, shall be applicable to the
entire institution unless the applicant establishes, to the satisfaction
of the responsible Department official, that the institution's practices
in designated parts or programs of the institution will in no way affect
its practices in the program of the institution for which Federal
financial assistance is sought, or the beneficiaries of or participants
in such program. If in any such case the assistance sought is for the
construction of a facility or part of a facility, the assurance shall in
any event extend to the entire facility and to facilities operated in
connection therewith.
(e) Elementary and secondary schools. The requirements of this
section with respect to any elementary or secondary school or school
system shall be deemed to be satisfied if such school or school system
(1) is subject to a final order of a court of the United States for the
desegregation of such school or school system, and provides an assurance
that it will comply with such order, including any future modification
of such order, or (2) submits a plan for the desegregation of such
school or school system which the responsible official of the Department
of Health and Human Services determines is adequate to accomplish the
purposes of the Act and this part 1 within the earliest practicable
time, and provides reasonable assurance that it will carry out such
plan.
[38 FR 17949, July 5, 1973, as amended at 50 FR 9269, Mar. 7, 1985]
Sec. 1.6 Compliance information.
(a) Cooperation and assistance. The responsible Department official
and each Department official who by law or delegation has the principal
responsibility within the Department for the administration of any law
extending financial assistance subject to this part 1 shall to the
fullest extent practicable seek the cooperation of recipients in
obtaining compliance with this part 1 and shall provide assistance and
guidance to recipients to help them comply voluntarily with this part 1.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible Department official or his designee timely,
complete, and accurate compliance reports at such times, and in such
form and containing such information, as the responsible Department
official or his designee may determine to be necessary to enable him to
ascertain whether the recipient has complied or is complying with this
part 1. In general, recipients should have available for the department
racial and ethnic data showing
[[Page 12]]
the extent to which members of minority groups are beneficiaries of
federally assisted programs.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Department official or his designee during
normal business hours to such of its books, records, accounts, and other
sources of information, and its facilities as may be pertinent to
ascertain compliance with this part 1. Where any information required of
a recipient is in the exclusive possession of any other agency,
institution, or person and this agency, institution, or person shall
fail or refuse to furnish this information, the recipient shall so
certify in its report and shall set forth what efforts it has made to
obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part 1 and its applicability to the program or activity under which the
recipient receives Federal financial assistance, and make such
information available to them in such manner, as the responsible
Department official finds necessary to apprise such persons of the
protections against discrimination assured them by the Act and this part
1.
Sec. 1.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official
or his designee shall from time to time review the practices of
recipients to determine whether they are complying with this part 1.
(b) Complaints. Any person who believes himself or any specific
class of persons to be subjected to discrimination prohibited by this
part 1 may by himself or by a representative file with the responsible
Department official or his designee a written complaint. A complaint
must be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official or his designee.
(c) Investigations. The responsible Department official or his
designee shall make a prompt investigation whenever a compliance review,
report, complaint, or any other information indicates a possible failure
to comply with this part 1. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this part 1 occurred, and other factors relevant to a determination as
to whether the recipient has failed to comply with this part .
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part 1, the responsible Department official or his designee will so
inform the recipient and the matter will be resolved by informal means
whenever possible. If it has been determined that the matter cannot be
resolved by informal means, action will be taken as provided for in
Sec. 1.8.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the responsible Department official or
his designee will so inform the recipient and the complainant, if any,
in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any person for the purpose of interfering with any right or privilege
secured by title VI of the Act or this part 1, or because he has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part. The identity of
complainants shall be kept confidential except to the extent necessary
to carry out the purposes of this part, including the conduct of any
investigation, hearing, or judicial proceeding arising thereunder.
Sec. 1.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part 1, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part 1 may be effected by the suspension or termination of or
refusal to grant or to continue Federal financial assistance, or by any
other means authorized by law. Such other means may include, but are not
limited to: (1) A reference to the
[[Page 13]]
Department of Justice with a recommendation that appropriate proceedings
be brought to enforce any rights of the United States under any law of
the United States (including other titles of the Act), or any assurance
or other contractual undertaking, and (2) any applicable proceeding
under State or local law.
(b) Noncompliance with Sec. 1.5. If an applicant fails or refuses
to furnish an assurance required under Sec. 1.5 or otherwise fails or
refuses to comply with the requirement imposed by or pursuant to that
section, Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The Department shall
not be required to provide assistance in such a case during the pendency
of the administrative proceedings under such paragraph, except that the
Department shall continue assistance during the pendency of such
proceedings where such assistance is due and payable pursuant to a
contract therefor approved prior to January 3, 1965.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible Department official has advised the applicant
or recipient of his failure to comply and has determined that compliance
cannot be secured by voluntary means, (2) there has been an express
finding on the record, after opportunity for hearing, of a failure by
the applicant or recipient to comply with a requirement imposed by or
pursuant to this part 1, (3) the action has been approved by the
Secretary, and (4) the expiration of 30 days after the Secretary has
filed with the committees of the House and Senate having legislative
jurisdiction over the program or activity involved a full written report
of the circumstances and the grounds for such action. Any action to
suspend or terminate or to refuse to grant or to continue Federal
financial assistance shall be limited to the particular political
entity, or part thereof, or other recipient as to whom such a finding
has been made and shall be limited in its effect to the particular
program, or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the recipient or other person has been
notified of its failure to comply and of the action to be taken to
effect compliance, and (3) the expiration of at least 10 days from the
mailing of such notice to the applicant or recipient. During this period
of at least 10 days additional efforts shall be made to persuade the
applicant or recipient to comply with this part 1 and to take such
corrective action as may be appropriate.
Sec. 1.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 1.8(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and
either:
(1) Fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
Department official that the matter be scheduled for hearing, or (2)
advise the applicant or recipient 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 reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this paragraph (a) or
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 under section 602 of the Act and
Sec. 1.8(c) and consent to the making
[[Page 14]]
of a decision on the basis of such information as is available.
(b) Hearing procedures. Hearings shall be conducted in accordance
with 24 CFR part 180.
[38 FR 17949, July 5, 1973, as amended at 61 FR 52217, Oct. 4, 1996]
Sec. 1.10 Effect on other regulations; forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions heretofore issued by any officer of the Department which
impose requirements designed to prohibit any discrimination against
persons on the ground of race, color, or national origin under any
program or activity to which this part applies, and which authorize the
suspension or termination of or refusal to grant or to continue Federal
financial assistance to any applicant or recipient for failure to comply
with such requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any person of any obligation assumed or
imposed under any such superseded regulation, order, instruction, or
like direction prior to January 3, 1965. Nothing in this part, however,
shall be deemed to supersede any of the following (including future
amendments thereof):
(1) Executive Orders 11246 and 11375 and regulations issued
thereunder, or
(2) Executive Order 11063 and regulations issued thereunder, or any
other order, regulations or instructions, insofar as such order,
regulations, or instructions, prohibit discrimination on the ground of
race, color, or national origin in any program or activity or situation
to which this part is inapplicable, or prohibit discrimination on any
other ground.
(b) Forms and instructions. The responsible Department official
shall assure that forms and detailed instructions and procedures for
effectuating this part are issued and promptly made available to
interested persons.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
department or agency, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in Sec. 1.10),
including the achievement of effective coordination and maximum
uniformity within the Department and within the Executive Branch of the
Government in the application of title VI and this part to similar
programs or activities and in similar situations. Any action taken,
determination made, or requirement imposed by an official of another
department or agency acting pursuant to an assignment of responsibility
under this paragraph shall have the same effect as though such action
had been taken by the responsible official of this Department.
[38 FR 17949, July 5, 1973. Redesignated at 61 FR 52217, Oct. 4, 1996]
PART 3_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_Introduction
Sec.
3.100 Purpose and effective date.
3.105 Definitions.
3.110 Remedial and affirmative action and self-evaluation.
3.115 Assurance required.
3.120 Transfers of property.
3.125 Effect of other requirements.
3.130 Effect of employment opportunities.
3.135 Designation of responsible employee and adoption of grievance
procedures.
3.140 Dissemination of policy.
Subpart B_Coverage
3.200 Application.
3.205 Educational institutions and other entities controlled by
religious organizations.
3.210 Military and merchant marine educational institutions.
3.215 Membership practices of certain organizations.
3.220 Admissions.
3.225 Educational institutions eligible to submit transition plans.
3.230 Transition plans.
[[Page 15]]
3.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
3.300 Admission.
3.305 Preference in admission.
3.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
3.400 Education programs or activities.
3.405 Housing.
3.410 Comparable facilities.
3.415 Access to course offerings.
3.420 Access to schools operated by LEAs.
3.425 Counseling and use of appraisal and counseling materials.
3.430 Financial assistance.
3.435 Employment assistance to students.
3.440 Health and insurance benefits and services.
3.445 Marital or parental status.
3.450 Athletics.
3.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
3.500 Employment.
3.505 Employment criteria.
3.510 Recruitment.
3.515 Compensation.
3.520 Job classification and structure.
3.525 Fringe benefits.
3.530 Marital or parental status.
3.535 Effect of state or local law or other requirements.
3.540 Advertising.
3.545 Pre-employment inquiries.
3.550 Sex as a bona fide occupational qualification.
Subpart F_Procedures
3.600 Notice of covered programs.
3.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52879, Aug. 30, 2000, unless otherwise noted.
Subpart A_Introduction
Sec. 3.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 3.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means Assistant Secretary for Fair
Housing and Equal Opportunity.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
[[Page 16]]
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates, diplomas, or degrees and
whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
3.100 through 3.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972,
[[Page 17]]
20 U.S.C. 1681(a)(2), under which an educational institution operates in
making the transition from being an educational institution that admits
only students of one sex to being one that admits students of both sexes
without discrimination.
[65 FR 52865, 52879, Aug. 30, 2000, as amended at 65 FR 52880, Aug. 30,
2000]
Sec. 3.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 3.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec. 3.110(a)
to eliminate existing discrimination on the basis of sex or to eliminate
the effects of past discrimination whether occurring prior to or
subsequent to the submission to the designated agency official of such
assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during
[[Page 18]]
which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 3.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 3.205 through 3.235(a).
Sec. 3.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 3.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 3.135 Designation of responsible employee and adoption
of grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and
[[Page 19]]
employee complaints alleging any action that would be prohibited by
these Title IX regulations.
Sec. 3.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 3.300 through 3.310 do not apply to the recipient, and
that inquiries concerning the application of Title IX and these Title IX
regulations to such recipient may be referred to the employee designated
pursuant to Sec. 3.135, or to the designated agency official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B_Coverage
Sec. 3.200 Application.
Except as provided in Sec. Sec. 3.205 through 3.235(a), these Title
IX regulations apply to every recipient and to each education program or
activity operated by such recipient that receives Federal financial
assistance.
Sec. 3.205 Educational institutions and other entities controlled
by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
[[Page 20]]
Sec. 3.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 3.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 3.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 3.225 and 3.230, and Sec. Sec. 3.300 through 3.310,
each administratively separate unit shall be deemed to be an educational
institution.
(c) Application of Sec. Sec. 3.300 through 3.310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 3.300
through 3.310 apply to each recipient. A recipient to which Sec. Sec.
3.300 through 3.310 apply shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 3.300 through 3.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 3.300 through 3.310 apply only to institutions of vocational
education, professional education, graduate higher education, and public
institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Sec. Sec. 3.300 through 3.310 do not apply to any public institution of
undergraduate higher education that traditionally and continually from
its establishment has had a policy of admitting students of only one
sex.
Sec. 3.225 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 3.300 through 3.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 3.300 through 3.310.
Sec. 3.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 3.225 applies
and that is composed of more than one administratively separate unit may
submit either a single transition plan applicable to all such units, or
a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who
[[Page 21]]
submits the plan shall be the chief administrator or president of the
institution, or another individual legally authorized to bind the
institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 3.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 3.300 through
3.310 unless such treatment is necessitated by an obstacle identified in
paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 3.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 3.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system
[[Page 22]]
of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 3.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Sec. Sec. 3.300 through 3.310 apply, except as
provided in Sec. Sec. 3.225 and 3.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Sec. Sec. 3.300 through 3.310 apply
shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 3.300 through 3.310 apply:
[[Page 23]]
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 3.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 3.305 Preference in admission.
A recipient to which Sec. Sec. 3.300 through 3.310 apply shall not
give preference to applicants for admission, on the basis of attendance
at any educational institution or other school or entity that admits as
students only or predominantly members of one sex, if the giving of such
preference has the effect of discriminating on the basis of sex in
violation of Sec. Sec. 3.300 through 3.310.
Sec. 3.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
3.300 through 3.310 apply shall not discriminate on the basis of sex in
the recruitment and admission of students. A recipient may be required
to undertake additional recruitment efforts for one sex as remedial
action pursuant to Sec. 3.110(a), and may choose to undertake such
efforts as affirmative action pursuant to Sec. 3.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 3.300 through 3.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Sec. Sec. 3.300 through 3.310.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 3.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
3.400 through 3.455 do not apply to actions of a recipient in connection
with admission of its students to an education program or activity of a
recipient to which Sec. Sec. 3.300 through 3.310 do not apply, or an
entity, not a recipient, to which Sec. Sec. 3.300 through 3.310 would
not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 3.400
through 3.455, in providing any aid, benefit, or service to a student, a
recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing
[[Page 24]]
any aid, benefit, or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 3.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 3.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 3.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its
[[Page 25]]
education program or activity separately on the basis of sex, or require
or refuse participation therein by any of its students on such basis,
including health, physical education, industrial, business, vocational,
technical, home economics, music, and adult education courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 3.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 3.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 3.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section,
[[Page 26]]
in providing financial assistance to any of its students, a recipient
shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 3.450.
Sec. 3.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
3.500 through 3.550.
Sec. 3.440 Health and insurance benefits and services.
Subject to Sec. 3.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Sec. Sec. 3.500 through 3.550 if it were provided to employees
of the recipient. This section shall not prohibit a recipient from
providing any benefit or service that may be used by a different
proportion of students of one sex than of the other, including family
planning services. However, any recipient that provides full coverage
health service shall provide gynecological care.
Sec. 3.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental,
[[Page 27]]
family, or marital status that treats students differently on the basis
of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 3.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 3.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
[[Page 28]]
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 3.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 3.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Sec. Sec. 3.500
through 3.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Sec. Sec. 3.500 through 3.550
apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for
[[Page 29]]
tuition assistance, selection for sabbaticals and leaves of absence to
pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 3.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 3.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Sec. Sec. 3.500 through 3.550.
Sec. 3.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 3.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 3.550.
Sec. 3.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 3.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 3.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment
[[Page 30]]
that treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 3.235(d),
a recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, recovery therefrom, and any temporary
disability resulting therefrom as any other temporary disability for all
job-related purposes, including commencement, duration, and extensions
of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe
benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 3.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 3.500 through 3.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 3.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 3.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 3.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec. 3.500
through 3.550 provided it is shown that sex is a bona fide occupational
qualification for that action, such that consideration of sex with
regard to such action is essential to successful operation of the
employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
[[Page 31]]
Subpart F_Procedures
Sec. 3.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 3.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 24 CFR part 1.
[65 FR 52880, Aug. 30, 2000]
PART 4_HUD REFORM ACT--Table of Contents
Subpart A_Accountability in the Provision of HUD Assistance
Sec.
4.1 Purpose.
4.3 Definitions.
4.5 Notice and documentation of assistance subject to section 102(a).
4.7 Notice of funding decisions.
4.9 Disclosure requirements for assistance subject to section 102(b).
4.11 Updating of disclosure.
4.13 Limitation of assistance subject to section 102(d).
Subpart B_Prohibition of Advance Disclosure of Funding Decisions
4.20 Purpose.
4.22 Definitions.
4.24 Scope.
4.26 Permissible and impermissible disclosures.
4.28 Civil penalties.
4.30 Procedure upon discovery of a violation.
4.32 Investigation by Office of Inspector General.
4.34 Review of Inspector General's report by the Ethics Law Division.
4.36 Action by the Ethics Law Division.
4.38 Administrative remedies.
Authority: 42 U.S.C. 3535(d), 3537a, 3545.
Source: 61 FR 14449, Apr. 1, 1996, unless otherwise noted.
Subpart A_Accountability in the Provision of HUD Assistance
Sec. 4.1 Purpose.
The provisions of this subpart A are authorized under section 102 of
the Department of Housing and Urban Development Reform Act of 1989 (Pub.
L. 101-235, approved December 15, 1989) (42 U.S.C. 3537a) (hereinafter,
Section 102). Both the provisions of Section 102 and this subpart A
apply for the purposes of Section 102. Section 102 contains a number of
provisions designed to ensure greater accountability and integrity in
the way in which the Department makes assistance available under certain
of its programs.
Sec. 4.3 Definitions.
Applicant includes a person whose application for assistance must be
submitted to HUD for any purpose including approval, environmental
review, or rent determination.
Assistance under any program or discretionary fund administered by
the Secretary is subject to Section 102(a), and means any assistance,
under any program administered by the Department, that provides by
statute, regulation or otherwise for the competitive distribution of
funding.
Assistance within the jurisdiction of the Department is subject to
Section 102(b), and means any contract, grant, loan, cooperative
agreement, or other form of assistance, including the insurance or
guarantee of a loan or mortgage, that is provided with respect to a
specific project or activity under a program administered by the
Department, whether or not it is awarded through a competitive process.
Assistance within the jurisdiction of the Department to any housing
project is subject to Section 102(d), and means:
(1) Assistance which is provided directly by HUD to any person or
entity, but not to subrecipients. It includes assistance for the
acquisition, rehabilitation, operation conversion, modernization,
renovation, or demolition of any property containing five or more
dwelling units that is to be used primarily
[[Page 32]]
for residential purposes. It includes assistance to independent group
residences, board and care facilities, group homes and transitional
housing but does not include primarily nonresidential facilities such as
intermediate care facilities, nursing homes and hospitals. It also
includes any change requested by a recipient in the amount of assistance
previously provided, except changes resulting from annual adjustments in
Section 8 rents under Section 8(c)(2)(A) of the United States Housing
Act of 1937 (42 U.S.C. 1437f);
(2) Assistance to residential rental property receiving a tax credit
under Federal, State or local law.
(3) For purposes of this definition, assistance includes assistance
resulting from annual adjustments in Section 8 rents under Section
8(c)(2)(A) of the United States Housing Act of 1937, unless the initial
assistance was made available before April 15, 1991, and no other
assistance subject to this subpart A was made available on or after that
date.
Housing project means: (1) Property containing five or more dwelling
units that is to be used for primarily residential purposes, including
(but not limited to) living arrangements such as independent group
residences, board and care facilities, group homes, and transitional
housing, but excluding facilities that provide primarily non-residential
services, such as intermediate care facilities, nursing homes, and
hospitals.
(2) Residential rental property receiving a tax credit under
Federal, State, or local law.
Interested party means any person involved in the application for
assistance, or in the planning, development or implementation of the
project or activity for which assistance is sought and any other person
who has a pecuniary interest exceeding the lower of $50,000 or 10
percent in the project or activity for which assistance is sought.
Selection criteria includes, in addition to any objective measures
of housing and other need, project merit, or efficient use of resources,
the weight or relative importance of each published selection criterion
as well as any other factors that may affect the selection of
recipients.
Sec. 4.5 Notice and documentation of assistance subject
to section 102(a).
(a) Notice. Before the Department solicits an application for
assistance subject to Section 102(a), it will post a notice describing
application procedures and selection criteria not less than 30 calendar
days before the deadline by which applications must be submitted.
(b) Documentation of decisions. HUD will make available for public
inspection, for at least five (5) years, and beginning not less than 30
calendars days after it provides the assistance, all documentation and
other information regarding the basis for the funding decision with
respect to each application submitted to HUD for assistance. HUD will
also make available any written indication of support that it received
from any applicant. Recipients of HUD assistance must ensure, in
accordance with HUD guidance, the public availability of similar
information submitted by subrecipients of HUD assistance.
[61 FR 14449, Apr. 1, 1996, as amended at 80 FR 75934, Dec. 7, 2015]
Sec. 4.7 Notice of funding decisions.
HUD will publish a Notice in the Federal Register at least quarterly
to notify the public of all decisions made by the Department to provide:
(a) Assistance subject to Section 102(a); and
(b) Assistance that is provided through grants or cooperative
agreements on a discretionary (non-formula, non-demand) basis, but that
is not provided on the basis of a competition.
Sec. 4.9 Disclosure requirements for assistance subject
to section 102(b).
(a) Receipt and reasonable expectation of receipt. (1) In
determining the threshold of applicability of Section 102(b), an
applicant will be deemed to have received or to have a reasonable
expectation of receiving:
(i) The total amount of assistance received during the Federal
fiscal year during which the application was submitted;
(ii) The total amount of assistance requested for the fiscal year in
which any pending application, including the
[[Page 33]]
current application, was submitted; and
(iii) For the fiscal year described in paragraph (a)(1)(ii) of this
section, the total amount of assistance from the Department or any other
entity that is likely to be made available on a formula basis or in the
form of program income as defined in 2 CFR 200.80.
(2) In the case of assistance that will be provided pursuant to
contract over a period of time (such as project-based assistance under
Section 8 of the United States Housing Act of 1937), all amounts that
are to be provided over the term of the contract, irrespective of when
they are to be received.
(b) Content of disclosure. Applicants that receive or can reasonably
be expected to receive, as defined in paragraph (a) of this section, an
aggregate amount of assistance that is in excess of $200,000 must
disclose the following information:
(1) Other governmental assistance that is or is expected to be made
available, based upon a reasonable assessment of the circumstances, with
respect to the project or activities for which the assistance is sought;
(2) The name and pecuniary interest of any interested party; and
(3) A report of the expected sources and uses of funds for the
project or activity which is the subject of the application, including
governmental and non-governmental sources of funds and private capital
resulting from tax benefits.
(c) In the case of mortgage insurance under 24 CFR subtitle B,
chapter II, the mortgagor is responsible for making the disclosures
required under Section 102(b) and this section, and the mortgagee is
responsible for furnishing the mortgagor's disclosures to the
Department.
(Approved by the Office of Management and Budget under control number
2510-0011)
[61 FR 14449, Apr. 1, 1996, as amended at 80 FR 75934, Dec. 7, 2015]
Sec. 4.11 Updating of disclosure.
(a) During the period in which an application for assistance covered
under Section 102(b) is pending, or in which such assistance is being
provided, the applicant must report to the Department, or to the State
or unit of general local government, as appropriate:
(1) Any information referred to in Section 102(b) that the applicant
should have disclosed with respect to the application, but did not
disclose;
(2) Any information referred to in Section 102(b) that initially
arose after the time for making disclosures under that subsection,
including the name and pecuniary interest of any person who did not have
a pecuniary interest in the project or activity that exceeded the
threshold in Section 102(b) at the time of the application, but that
subsequently exceeded the threshold.
(b) With regard to changes in information that was disclosed under
Sections 102(b) or 102(c):
(1) For programs administered by the Assistant Secretary for
Community Planning and Development:
(i) Any change in other government assistance covered by Section
102(b) that exceeds the amount of all assistance that was previously
disclosed by the lesser of $250,000 or 10 percent of the assistance;
(ii) Any change in the expected sources or uses of funds that exceed
the amount of all previously disclosed sources or uses by the lesser of
$250,000 or 10 percent of previously disclosed sources;
(2) For all other programs:
(i) Any change in other government assistance under Section
102(b)(1) that exceeds the amount of assistance that was previously
disclosed;
(ii) Any change in the pecuniary interest of any person under
Section 102(b)(2) that exceeds the amount of all previously disclosed
interests by the lesser of $50,000 or 10 percent of such interest;
(iii) For all projects receiving a tax credit under Federal, Sate or
local law, any change in the expected sources or uses of funds that were
previously disclosed;
(iv) For all other projects:
(A) Any change in the expected source of funds from a single source
that exceeds the lesser of the amount previously disclosed for that
source of funds by $250,000 or 10 percent of the funds previously
disclosed for that source;
[[Page 34]]
(B) Any change in the expected sources of funds from all sources
previously disclosed that exceeds the lesser of $250,000 or 10 percent
of the amounts previously disclosed from all sources of funds;
(C) Any change in a single expected use of funds that exceeds the
lesser of $250,000 or 10 percent of the previously disclosed use;
(D) Any change in the use of all funds that exceeds the lesser of
$250,000 or 10 percent of the previously disclosed uses for all funds.
(c) Period of coverage. For purposes of updating of Section 102(c),
an application for assistance will be considered to be pending from the
time the application is submitted until the Department communicates its
decision with respect to the selection of the applicant.
(Approved by the Office of Management and Budget under control number
2510-0011)
Sec. 4.13 Limitation of assistance subject to section 102(d).
(a) In making the certification for assistance subject to Section
102(d), the Secretary will consider the aggregate amount of assistance
from the Department and from other sources that is necessary to ensure
the feasibility of the assisted activity. The Secretary will take into
account all factors relevant to feasibility, which may include, but are
not limited to, past rates of returns for owners, sponsors, and
investors; the long-term needs of the project and its tenants; and the
usual and customary fees charged in carrying out the assisted activity.
(b) If the Department determines that the aggregate of assistance
within the jurisdiction of the Department to a housing project from the
Department and from other governmental sources exceeds the amount that
the Secretary determines is necessary to make the assisted activity
feasible, the Department will consider all options available to enable
it to make the required certification, including reductions in the
amount of Section 8 subsidies. The Department also may impose a dollar-
for-dollar, or equivalent, reduction in the amount of HUD assistance to
offset the amount of other government assistance. In grant programs,
this could result in a reduction of any grant amounts not yet drawn
down. The Department may make these adjustments immediately, or in
conjunction with servicing actions anticipated to occur in the near
future (e.g., in conjunction with the next annual adjustment of Section
8 rents).
(c) If an applicant does not meet the $200,000 disclosure
requirement in Sec. 4.7(b), an applicant must certify whether there is,
or is expected to be made, available with respect to the housing project
any other governmental assistance. The Department may also require any
applicant subject to this subpart A to submit such a certification in
conjunction with the Department's processing of any subsequent servicing
action on that project. If there is other government assistance for
purposes of the two preceding sentences, the applicant must submit such
information as the Department deems necessary to make the certification
and subsequent adjustments under Section 102(d).
(d) The certification under Section 102(d) shall be retained in the
official file for the housing project.
Subpart B_Prohibition of Advance Disclosure of Funding Decisions
Sec. 4.20 Purpose.
The provisions of this subpart B are authorized under section 103 of
the Department of Housing and Urban Development Reform Act of 1989 (Pub.
L. 101-235, approved December 15, 1989) (42 U.S.C. 3537a) (hereinafter,
Section 103). Both the provisions of Section 103 and this subpart B
apply for the purposes of Section 103. Section 103 proscribes direct or
indirect communication of certain information during the selection
process by HUD employees to persons within or outside of the Department
who are not authorized to receive that information. The purpose of the
proscription is to preclude giving an unfair advantage to applicants who
would receive information not available to other applicants or to the
public. Section 103 also authorizes the Department to impose a civil
money penalty on a HUD employee who knowingly discloses protected
information, if such a violation of Section 103 is material, and
authorizes the Department to
[[Page 35]]
sanction the person who received information improperly by, among other
things, denying assistance to that person.
Sec. 4.22 Definitions.
Application means a written request for assistance regardless of
whether the request is in proper form or format.
Assistance does not include any contract (e.g., a procurement
contract) that is subject to the Federal Acquisition Regulation (FAR)
(48 CFR ch. 1).
Disclose means providing information directly or indirectly to a
person through any means of communication.
Employee includes persons employed on a full-time, part-time, or
temporary basis, and special government employees as defined in 18
U.S.C. 202. The term applies whether or not the employee is denoted as
an officer of the Department. ``Employee'' is to be construed broadly to
include persons who are retained on a contractual or consultative basis
under an Office of Human Resources appointment. However, ``employee''
does not include an independent contractor, e.g., a firm or individual
working under the authority of a procurement contract.
Material or materially means in some influential or substantial
respect or having to do more with substance than with form.
Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, local government, or any
other organization or group of people.
Selection process means the period with respect to a selection for
assistance that begins when the HUD official responsible for awarding
the assistance involved, or his or her designee, makes a written request
(which includes the selection criteria to be used in providing the
assistance) to the Office of General Counsel (OGC) to prepare the NOFA,
solicitation, or request for applications for assistance for publication
in the Federal Register. The period includes the evaluation of
applications, and concludes with the announcement of the selection of
recipients of assistance.
Sec. 4.24 Scope.
(a) Coverage. The prohibitions against improper disclosure of
covered selection information apply to any person who is an employee of
the Department. In addition, the Department will require any other
person who participates at the invitation of the Department in the
selection process to sign a certification that he or she will be bound
by the provisions of this part.
(b) Applicability. The prohibitions contained in this part apply to
conduct occurring on or after June 12, 1991.
Sec. 4.26 Permissible and impermissible disclosures.
(a) Notwithstanding the provisions of Section 103, an employee is
permitted to disclose information during the selection process with
respect to:
(1) The requirements of a HUD program or programs, including
unpublished policy statements and the provision of technical assistance
concerning program requirements, provided that the requirements or
statements are disclosed on a uniform basis to any applicant or
potential applicant. For purposes of this part, the term ``technical
assistance'' includes such activities as explaining and responding to
questions about program regulations, defining terms in an application
package, and providing other forms of technical guidance that may be
described in a NOFA. The term ``technical assistance'' also includes
identification of those parts of an application that need substantive
improvement, but this term does not include advising the applicant how
to make those improvements.
(2) The dates by which particular decisions in the selection process
will be made;
(3) Any information which has been published in the Federal Register
in a NOFA or otherwise;
(4) Any information which has been made public through means other
than the Federal Register;
(5) An official audit, inquiry or investigation, if the disclosure
is made to an auditor or investigator authorized by the HUD Inspector
General to conduct the audit or investigation;
[[Page 36]]
(6) Legal activities, including litigation, if the disclosure is
made to an attorney who is representing or is otherwise responsible to
the Department in connection with the activities; or
(7) Procedures that are required to be performed to process an
application, e.g., environmental or budget reviews, and technical
assistance from experts in fields who are regularly employed by other
government agencies, provided that the agency with which the expert is
employed or associated is not an applicant for HUD assistance during the
pending funding cycle.
(b) An authorized employee, during the selection process, may
contact an applicant for the purpose of:
(1) Communication of the applicant's failure to qualify, after a
preliminary review for eligibility and completeness with respect to his
or her application, and the reasons for the failure to qualify, or the
fact of the applicant's failure to be determined to be technically
acceptable after a full review; or
(2) Clarification of the terms of the applicant's application. A
clarification, for the purpose of this paragraph (b), may include a
request for additional information consistent with regulatory
requirements.
(c) Prohibition of advance disclosure of funding decisions. During
the selection process an employee shall not knowingly disclose any
covered selection information regarding the selection process to any
person other than an employee authorized to receive that information.
(1) The following disclosures of information are, at any time during
the selection process, a violation of Section 103:
(i) Information regarding any applicant's relative standing;
(ii) The amount of assistance requested by any applicant;
(iii) Any information contained in an application;
(2) The following disclosures of information, before the deadline
for the submission of applications, shall be a violation of Section 103:
(i) The identity of any applicant; and
(ii) The number of applicants.
Sec. 4.28 Civil penalties.
Whenever any employee knowingly and materially violates the
prohibition in Section 103, the Department may impose a civil money
penalty on the employee in accordance with the provisions of 24 CFR part
30.
Sec. 4.30 Procedure upon discovery of a violation.
(a) In general. When an alleged violation of Section 103 or this
subpart B comes to the attention of any person, including an employee,
he or she may either:
(1) Contact the HUD Ethics Law Division to provide information about
the alleged violation; or
(2) Contact the HUD Office of Inspector General to request an
inquiry or investigation into the matter.
(b) Ethics Law Division. When the Ethics Law Division receives
information concerning an alleged violation of Section 103, it shall
refer the matter to the Inspector General stating the facts of the
alleged violation and requesting that the Inspector General make an
inquiry or investigation into the matter.
(c) Inspector General. When the Inspector General receives
information concerning an alleged violation of Section 103 or this
subpart B, he or she shall notify the Ethics Law Division when the
Inspector General begins an inquiry or investigation into the matter.
(d) Protection of employee complainants. (1) No official of the
Ethics Law Division, after receipt of information from an employee
stating the facts of an alleged violation of this part, shall disclose
the identity of the employee without the consent of that employee. The
Inspector General, after receipt of information stating the facts of an
alleged violation of this part, shall not disclose the identity of the
employee who provided the information without the consent of that
employee, unless the Inspector General determines that disclosure of the
employee's identity is unavoidable during the course of an
investigation. However, any employee who knowingly reports a false
alleged violation of this part is not so protected and may be subject to
disciplinary action.
[[Page 37]]
(2) Any employee who has authority to take, direct others to take,
recommend or approve a personnel action is prohibited from threatening,
taking, failing to take, recommending, or approving any personnel action
as reprisal against another employee for providing information to
investigating officials.
Sec. 4.32 Investigation by Office of Inspector General.
The Office of Inspector General shall review every alleged violation
of Section 103. If after a review the Office of Inspector General
determines that further investigation is not warranted, it shall notify
the Ethics Law Division of that determination. If, after a review, the
Office of Inspector General determines that additional investigation is
warranted, it shall conduct the investigation and upon completion issue
a report of the investigation to the Ethics Law Division as to each
alleged violation.
Sec. 4.34 Review of Inspector General's report by the Ethics
Law Division.
After receipt of the Inspector General's report, the Ethics Law
Division shall review the facts and circumstances of the alleged
violations. In addition, the Ethics Law Division may:
(a) Return the report to the Inspector General with a request for
further investigation;
(b) Discuss the violation with the employee alleged to have
committed the violation; or
(c) Interview any other person, including employees who it believes
will be helpful in furnishing information relevant to the inquiry.
Sec. 4.36 Action by the Ethics Law Division.
(a) After review of the Inspector General's report, the Ethics Law
Division shall determine whether or not there is sufficient information
providing a reasonable basis to believe that a violation of Section 103
or this subpart B has occurred.
(b) If the Ethics Law Division determines that there is no
reasonable basis to believe that a violation of Section 103 or this
subpart B has occurred, it shall close the matter and send its
determination to the Office of Inspector General.
(c) If the Ethics Law Division determines that there is sufficient
information to provide a reasonable basis to believe that a violation of
Section 103 or this subpart B has occurred, it shall:
(1) Send its determination to the Office of Inspector General; and
(2) Refer the matter to the appropriate official for review as to
whether to impose a civil money penalty in accordance with 24 CFR part
30; provided, however, that the Ethics Law Division shall not make a
civil money penalty recommendation unless it finds the violation to have
been knowing and material. The decision to impose a civil money penalty
in a particular matter may be made only upon referral from the Ethics
Law Division.
(d) In determining whether a violation is material, the Ethics Law
Division shall consider the following factors, as applicable:
(1) The content of the disclosure and its significance to the person
to whom the disclosure was made;
(2) The time during the selection process when the disclosure was
made;
(3) The person to whom the disclosure was made;
(4) The dollar amount of assistance requested by the person to whom
the disclosure was made;
(5) The dollar amount of assistance available for a given
competition or program;
(6) The benefit, if any, received or expected by the employee, the
employee's relatives or friends, or any other person with whom the
employee is affiliated;
(7) The potential injury to the Department.
(e) If the Ethics Law Division determines that there is sufficient
information to provide a reasonable basis to believe that a violation of
Section 103 or this subpart B has occurred, it may, in addition to
referring the matter under 24 CFR part 30, refer the matter to an
appropriate HUD official for consideration of any other available
disciplinary action. Any referral authorized by this paragraph (e) shall
be reported to the Inspector General and
[[Page 38]]
may be reported to the employee's supervisor.
Sec. 4.38 Administrative remedies.
(a) If the Department receives or obtains information providing a
reasonable basis to believe that a violation of Section 103 has
occurred, the Department may impose a sanction, as determined to be
appropriate, upon an applicant for or a recipient of assistance who has
received covered selection information.
(b) In determining whether a sanction is appropriate and if so which
sanction or sanctions should be sought, the Secretary shall give
consideration to the applicant's conduct with respect to the violation.
In so doing, the Secretary shall consider the factors listed at Sec.
4.36(d), as well as any history of prior violations in any HUD program,
the benefits received or expected, deterrence of future violations and
the extent of any complicity in the violation.
(c) The Secretary may impose a sanction authorized by this section
whether or not the Ethics Law Division refers a case under 24 CFR part
30, and whether or not a civil money penalty is imposed.
PART 5_GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS--Table of Contents
Subpart A_Generally Applicable Definitions and Requirements; Waivers
Sec.
5.100 Definitions.
5.105 Other Federal requirements.
5.106 Equal access in accordance with the individual's gender identity
in community planning and development programs.
5.107 Audit requirements for non-profit organizations.
5.109 Equal Participation of Religious Organizations in HUD Programs and
Activities.
5.110 Waivers.
5.111 Housing counseling.
Affirmatively Furthering Fair Housing
5.150 Affirmatively Furthering Fair Housing: Purpose.
5.151 Affirmatively Furthering Fair Housing: Implementation.
5.152 Definitions.
5.154 Assessment of Fair Housing (AFH).
5.156 Joint and Regional AFHs.
5.158 Community participation, consultation, and coordination.
5.160 Submission requirements.
5.162 Review of AFH.
5.164 Revising an accepted AFH.
5.166 AFFH certification.
5.168 Recordkeeping.
5.167-5.180 [Reserved]
Subpart B_Disclosure and Verification of Social Security Numbers and
Employer Identification Numbers; Procedures for Obtaining Income
Information
5.210 Purpose, applicability, and Federal preemption.
5.212 Compliance with the Privacy Act and other requirements.
5.214 Definitions.
Disclosure and Verification of Social Security Numbers and Employer
Identification Numbers for Applicants and Participants in Certain HUD
Programs
5.216 Disclosure and verification of Social Security and Employer
Identification Numbers.
5.218 Penalties for failing to disclose and verify Social Security and
Employer Identification Numbers.
Procedures for Obtaining Income Information About Applicants and
Participants
5.230 Consent by assistance applicants and participants.
5.232 Penalties for failing to sign consent forms.
5.233 Mandated use of HUD's Enterprise Income Verification (EIV) System.
5.234 Requests for information from SWICAs and Federal agencies;
restrictions on use.
5.236 Procedures for termination, denial, suspension, or reduction of
assistance based on information obtained from a SWICA or
Federal agency.
5.238 Criminal and civil penalties.
5.240 Family disclosure of income information to the responsible entity
and verification.
Subpart C_Pet Ownership for the Elderly or Persons With Disabilities
General Requirements
5.300 Purpose.
5.303 Exclusion for animals that assist, support, or provide service to
persons with disabilities.
5.306 Definitions.
5.309 Prohibition against discrimination.
5.312 Notice to tenants.
5.315 Content of pet rules: General requirements.
5.318 Discretionary pet rules.
[[Page 39]]
5.321 Lease provisions.
5.324 Implementation of lease provisions.
5.327 Nuisance or threat to health or safety.
Pet Ownership Requirements for Housing Programs
5.350 Mandatory pet rules for housing programs.
5.353 Housing programs: Procedure for development of pet rules.
5.356 Housing programs: Pet rule violation procedures.
5.359 Housing programs: Rejection of units by applicants for tenancy.
5.360 Housing programs: Additional lease provisions.
5.363 Housing programs: Protection of the pet.
Pet Ownership Requirements for Public Housing Programs
5.380 Public housing programs: Procedure for development of pet rules.
Subpart D_Definitions for Section 8 and Public Housing Assistance Under
the United States Housing Act of 1937
5.400 Applicability.
5.403 Definitions.
Subpart E_Restrictions on Assistance to Noncitizens
5.500 Applicability.
5.502 Requirements concerning documents.
5.504 Definitions.
5.506 General provisions.
5.508 Submission of evidence of citizenship or eligible immigration
status.
5.510 Documents of eligible immigration status.
5.512 Verification of eligible immigration status.
5.514 Delay, denial, reduction or termination of assistance.
5.516 Availability of preservation assistance to mixed families and
other families.
5.518 Types of preservation assistance available to mixed families and
other families.
5.520 Proration of assistance.
5.522 Prohibition of assistance to noncitizen students.
5.524 Compliance with nondiscrimination requirements.
5.526 Protection from liability for responsible entities and State and
local government agencies and officials.
5.528 Liability of ineligible tenants for reimbursement of benefits.
Subpart F_Section 8 and Public Housing, and Other HUD Assisted Housing
Serving Persons with Disabilities: Family Income and Family Payment;
Occupancy Requirements for Section 8 Project-Based Assistance
5.601 Purpose and applicability.
5.603 Definitions.
Family Income
5.609 Annual income.
5.611 Adjusted income.
5.612 Restrictions on assistance to students enrolled in an institution
of higher education.
5.613 Public housing program and Section 8 tenant-based assistance
program: PHA cooperation with welfare agency.
5.615 Public housing program and Section 8 tenant-based assistance
program: How welfare benefit reduction affects family income.
5.617 Self-sufficiency incentives for persons with disabilities--
Disallowance of increase in annual income.
Family Payment
5.628 Total tenant payment.
5.630 Minimum rent.
5.632 Utility reimbursements.
5.634 Tenant rent.
Section 8 Project-Based Assistance: Occupancy Requirements
5.653 Section 8 project-based assistance programs: Admission--Income-
eligibility and income-targeting.
5.655 Section 8 project-based assistance programs: Owner preferences in
selection for a project or unit.
5.657 Section 8 project-based assistance programs: Reexamination of
family income and composition.
5.659 Family information and verification.
5.661 Section 8 project-based assistance programs: Approval for police
or other security personnel to live in project.
Subpart G_Physical Condition Standards and Inspection Requirements
5.701 Applicability.
5.703 Physical condition standards for HUD housing that is decent, safe,
sanitary and in good repair (DSS/GR).
5.705 Uniform physical inspection requirements.
[[Page 40]]
Subpart H_Uniform Financial Reporting Standards
5.801 Uniform financial reporting standards.
Subpart I_Preventing Crime in Federally Assisted Housing_Denying
Admission and Terminating Tenancy for Criminal Activity or Alcohol Abuse
General
5.850 Which subsidized housing is covered by this subpart?
5.851 What authority do I have to screen applicants and evict tenants?
5.852 What discretion do I have in screening and eviction actions?
5.853 Definitions.
Denying Admissions
5.854 When must I prohibit admission of individuals who have engaged in
drug-related criminal activity?
5.855 When am I specifically authorized to prohibit admission of
individuals who have engaged in criminal activity?
5.856 When must I prohibit admission of sex offenders?
5.857 When must I prohibit admission of alcohol abusers?
Terminating Tenancy
5.858 When authority do I have to evict drug criminals?
5.859 When am I specifically authorized to evict other criminals?
5.860 When am I specifically authorized to evict alcohol abusers?
5.861 What evidence of criminal activity must I have to evict?
Subpart J_Access to Criminal Records and Information
5.901 To what criminal records and searches does this subpart apply?
5.902 Definitions.
5.903 What special authority is there to obtain access to criminal
records?
5.905 What special authority is there to obtain access to sex offender
registration information?
Subpart K_Application, Registration, and Submission Requirements
5.1001 Applicability.
5.1003 Use of a universal identifier for organizations applying for HUD
grants.
5.1004 System of award management.
5.1005 Electronic submission of applications for grants and other
financial assistance.
Subpart L_Protection for Victims of Domestic Violence, Dating Violence,
Sexual Assault, or Stalking
5.2001 Applicability.
5.2003 Definitions.
5.2005 VAWA protections.
5.2007 Documenting the occurrence of domestic violence, dating violence,
sexual assault, or stalking.
5.2009 Remedies available to victims of domestic violence, dating
violence, sexual assault, or stalking.
5.2011 Effect on other laws.
Authority: 12 U.S.C. 1701x; 42 U.S.C. 1437a, 1437c, 1437d, 1437f,
1437n, 3535(d); Sec. 327, Pub. L. 109-115, 119 Stat. 2936; Sec. 607,
Pub. L. 109-162, 119 Stat. 3051 (42 U.S.C. 14043e et seq.); E.O. 13279,
67 FR 77141, 3 CFR, 2002 Comp., p. 258; and E.O. 13559, 75 FR 71319, 3
CFR, 2010 Comp., p. 273.
Source: 61 FR 5202, Feb. 9, 1996, unless otherwise noted.
Editorial Note: Nomenclature changes to part 5 appear at 65 FR
16715, Mar. 29, 2000.
Subpart A_Generally Applicable Definitions and Requirements; Waivers
Authority: 29 U.S.C. 794, 42 U.S.C. 1437a, 1437c, 1437c-1(d), 1437d,
1437f, 1437n, 3535(d), and Sec. 327, Pub. L. 109-115, 119 Stat. 2936; 42
U.S.C. 3600-3620; 42 U.S.C. 5304(b); 42 U.S.C. 12101 et seq.; 42 U.S.C.
12704-12708; E.O. 11063, 27 FR 11527, 3 CFR, 1958-1963 Comp., p. 652;
E.O. 12892, 59 FR 2939, 3 CFR, 1994 Comp., p. 849.
Sec. 5.100 Definitions.
The following definitions apply to this part and also in other
regulations, as noted:
1937 Act means the United States Housing Act of 1937 (42 U.S.C. 1437
et seq.)
ADA means the Americans with Disabilities Act of 1990 (42 U.S.C.
12101 et seq.).
ALJ means an administrative law judge appointed to HUD pursuant to 5
U.S.C. 3105 or detailed to HUD pursuant to 5 U.S.C. 3344.
Broadband infrastructure means cables, fiber optics, wiring, or
other permanent (integral to the structure) infrastructure, including
wireless infrastructure, that is capable of providing
[[Page 41]]
access to Internet connections in individual housing units, and that
meets the definition of ``advanced telecommunications capability''
determined by the Federal Communications Commission under section 706 of
the Telecommunications Act of 1996 (47 U.S.C. 1302).
Covered person, for purposes of 24 CFR 5, subpart I, and parts 966
and 982, means a tenant, any member of the tenant's household, a guest
or another person under the tenant's control.
Department means the Department of Housing and Urban Development.
Drug means a controlled substance as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802).
Drug-related criminal activity means the illegal manufacture, sale,
distribution, or use of a drug, or the possession of a drug with intent
to manufacture, sell, distribute or use the drug.
Elderly Person means an individual who is at least 62 years of age.
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. 3601 et
seq.).
Fair Market Rent (FMR) means the rent that would be required to be
paid in the particular housing market area in order to obtain privately
owned, decent, safe and sanitary rental housing of modest (non-luxury)
nature with suitable amenities. This Fair Market Rent includes utilities
(except telephone). Separate Fair Market Rents will be established by
HUD for dwelling units of varying sizes (number of bedrooms) and will be
published in the Federal Register in accordance with part 888 of this
title.
Family has the meaning provided this term in Sec. 5.403, and
applies to all HUD programs unless otherwise provided in the regulations
for a specific HUD program.
Federally assisted housing (for purposes of subparts I and J of this
part) means housing assisted under any of the following programs:
(1) Public housing;
(2) Housing receiving project-based or tenant-based assistance under
Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
(3) Housing that is assisted under section 202 of the Housing Act of
1959, as amended by section 801 of the National Affordable Housing Act
(12 U.S.C. 1701q);
(4) Housing that is assisted under section 202 of the Housing Act of
1959, as such section existed before the enactment of the National
Affordable Housing Act;
(5) Housing that is assisted under section 811 of the National
Affordable Housing Act (42 U.S.C. 8013);
(6) Housing financed by a loan or mortgage insured under section
221(d)(3) of the National Housing Act (12 U.S.C. 1715l(d)(3)) that bears
interest at a rate determined under the proviso of section 221(d)(5) of
such Act (12 U.S.C. 1715l(d)(5));
(7) Housing insured, assisted, or held by HUD or by a State or local
agency under section 236 of the National Housing Act (12 U.S.C. 1715z-
1); or
(8) Housing assisted by the Rural Development Administration under
section 514 or section 515 of the Housing Act of 1949 (42 U.S.C. 1483,
1484).
Gender identity means the gender with which a person identifies,
regardless of the sex assigned to that person at birth and regardless of
the person's perceived gender identity. Perceived gender identity means
the gender with which a person is perceived to identify based on that
person's appearance, behavior, expression, other gender related
characteristics, or sex assigned to the individual at birth or
identified in documents.
General Counsel means the General Counsel of HUD.
Grantee means the person or legal entity to which a grant is awarded
and that is accountable for the use of the funds provided.
Guest, only for purposes of 24 CFR part 5, subparts A and I, and
parts 882, 960, 966, and 982, means a person temporarily staying in the
unit with the consent of a tenant or other member of the household who
has express or implied authority to so consent on behalf of the tenant.
The requirements of parts 966 and 982 apply to a guest as so defined.
Homeownership counseling means housing counseling related to
homeownership and residential mortgage loans when provided in connection
with HUD's Housing Counseling Program, or
[[Page 42]]
required by or provided in connection with HUD Programs as defined in
Sec. 5.111. Homeownership counseling is housing counseling that covers
the decision to purchase a home, the selection and purchase of a home,
issues arising during or affecting the period of ownership of a home
(including financing, refinancing, default, and foreclosure, and other
financial decisions) and the sale or other disposition of a home.
Household, for purposes of 24 CFR part 5, subpart I, and parts, 960,
966, 882, and 982, means the family and PHA-approved live-in aide.
Housing counseling is independent, expert advice customized to the
need of the consumer to address the consumer's housing barriers and to
help achieve their housing goals and must include the following
processes: Intake; financial and housing affordability analysis; an
action plan, except for reverse mortgage counseling; and a reasonable
effort to have follow-up communication with the client when possible.
The content and process of housing counseling must meet the standards
outlined in 24 CFR part 214. Homeownership counseling and rental
counseling are types of housing counseling.
HUD means the same as Department.
MSA means a metropolitan statistical area.
NAHA means the Cranston-Gonzalez National Affordable Housing Act (42
U.S.C. 12701 et seq.).
NEPA means the National Environmental Policy Act of 1969 (42 U.S.C.
4321).
NOFA means Notice of Funding Availability.
OMB means the Office of Management and Budget.
Organizational Unit means the jurisdictional area of each Assistant
Secretary, and each office head or field administrator reporting
directly to the Secretary.
Other person under the tenant's control, for the purposes of the
definition of covered person and for parts 5, 882, 966, and 982 means
that the person, although not staying as a guest (as defined in this
section) in the unit, is, or was at the time of the activity in
question, on the premises (as premises is defined in this section)
because of an invitation from the tenant or other member of the
household who has express or implied authority to so consent on behalf
of the tenant. Absent evidence to the contrary, a person temporarily and
infrequently on the premises solely for legitimate commercial purposes
is not under the tenant's control.
Premises, for purposes of 24 CFR part 5, subpart I, and parts 960
and 966, means the building or complex or development in which the
public or assisted housing dwelling unit is located, including common
areas and grounds.
Public housing means housing assisted under the 1937 Act, other than
under Section 8. ``Public housing'' includes dwelling units in a mixed
finance project that are assisted by a PHA with capital or operating
assistance.
Public Housing Agency (PHA) means any State, county, municipality,
or other governmental entity or public body, or agency or
instrumentality of these entities, that is authorized to engage or
assist in the development or operation of low-income housing under the
1937 Act.
Rental housing counseling means counseling related to the rental of
residential property, which may include counseling regarding future
homeownership opportunities when provided in connection with HUD's
Housing Counseling Program, or required under or provided in connection
with HUD Programs as defined in Sec. 5.111. Rental housing counseling
may also include the decision to rent, responsibilities of tenancy,
affordability of renting and eviction prevention.
Responsible entity means:
(1) For the public housing program, the Section 8 tenant-based
assistance program (part 982 of this title), and the Section 8 project-
based certificate or voucher programs (part 983 of this title), and the
Section 8 moderate rehabilitation program (part 882 of this title),
responsible entity means the PHA administering the program under an ACC
with HUD;
(2) For all other Section 8 programs, responsible entity means the
Section 8 project owner.
Section 8 means section 8 of the United States Housing Act of 1937
(42 U.S.C. 1437f).
[[Page 43]]
Secretary means the Secretary of Housing and Urban Development.
Sexual orientation means one's emotional or physical attraction to
the same and/or opposite sex (e.g., homosexuality, heterosexuality, or
bisexuality).
Substantial rehabilitation, for the purposes of determining when
installation of broadband infrastructure is required as part of
substantial rehabilitation of multifamily rental housing, unless
otherwise defined by a program, means work that involves:
(1) Significant work on the electrical system of the multifamily
rental housing. ``Significant work'' means complete replacement of the
electrical system or other work for which the pre-construction cost
estimate is equal to or greater than 75 percent of the cost of replacing
the entire electrical system. In the case of multifamily rental housing
with multiple buildings with more than 4 units, ``entire system'' refers
to the electrical system of the building undergoing rehabilitation; or
(2) Rehabilitation of the multifamily rental housing in which the
pre-construction estimated cost of the rehabilitation is equal to or
greater than 75 percent of the total estimated cost of replacing the
multifamily rental housing after the rehabilitation is complete. In the
case of multifamily rental housing with multiple buildings with more
than 4 units, the replacement cost must be the replacement cost of the
building undergoing rehabilitation.
URA means the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (42 U.S.C. 4201-4655).
Violent criminal activity means any criminal activity that has as
one of its elements the use, attempted use, or threatened use of
physical force substantial enough to cause, or be reasonably likely to
cause, serious bodily injury or property damage.
[61 FR 5202, Feb. 9, 1996, as amended at 63 FR 23853, Apr. 30, 1998; 65
FR 16715, Mar. 29, 2000; 66 FR 28791, May 24, 2001; 77 FR 5674, Feb. 3,
2012; 81 FR 64782, Sept. 21, 2016; 81 FR 90657, Dec. 14, 2016; 81 FR
92635, Dec. 20, 2016]
Sec. 5.105 Other Federal requirements.
The requirements set forth in this section apply to all HUD
programs, except as may be otherwise noted in the respective program
regulations in title 24 of the CFR, or unless inconsistent with statutes
authorizing certain HUD programs:
(a) Nondiscrimination and equal opportunity. (1) The Fair Housing
Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100
et seq.; Executive Order 11063, as amended by Executive Order 12259 (3
CFR, 1959-1963 Comp., p. 652 and 3 CFR, 1980 Comp., p. 307) (Equal
Opportunity in Housing Programs) and implementing regulations at 24 CFR
part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-
2000d-4) (Nondiscrimination in Federally Assisted Programs) and
implementing regulations at 24 CFR part 1; the Age Discrimination Act of
1975 (42 U.S.C. 6101-6107) and implementing regulations at 24 CFR part
146; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and
implementing regulations at part 8 of this title; title II of the
Americans with Disabilities Act, 42 U.S.C. 12101 et seq.; 24 CFR part 8;
section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C.
1701u) and implementing regulations at 24 CFR part 135; Executive Order
11246, as amended by Executive Orders 11375, 11478, 12086, and 12107 (3
CFR, 1964-1965 Comp., p. 339; 3 CFR, 1966-1970 Comp., p. 684; 3 CFR,
1966-1970 Comp., p. 803; 3 CFR, 1978 Comp., p. 230; and 3 CFR, 1978
Comp., p. 264, respectively) (Equal Employment Opportunity Programs) and
implementing regulations at 41 CFR chapter 60; Executive Order 11625, as
amended by Executive Order 12007 (3 CFR, 1971-1975 Comp., p. 616 and 3
CFR, 1977 Comp., p. 139) (Minority Business Enterprises); Executive
Order 12432 (3 CFR, 1983 Comp., p. 198) (Minority Business Enterprise
Development); and Executive Order 12138, as amended by Executive Order
12608 (3 CFR, 1977 Comp., p. 393 and 3 CFR, 1987 Comp., p. 245) (Women's
Business Enterprise).
(2) Equal access to HUD-assisted or -insured housing. A
determination of eligibility for housing that is assisted by HUD or
subject to a mortgage insured by HUD shall be made in accordance with
the eligibility requirements provided for such program by HUD, and such
housing shall be made available without regard to actual or perceived
[[Page 44]]
sexual orientation, gender identity, or marital status.
(b) Disclosure requirements. The disclosure requirements and
prohibitions of 31 U.S.C. 1352 and implementing regulations at 24 CFR
part 87; and the requirements for funding competitions established by
the Department of Housing and Urban Development Reform Act of 1989 (42
U.S.C. 3531 et seq.).
(c) Debarred, suspended, or ineligible contractors and participants.
The prohibitions at 2 CFR part 2424 on the use of debarred, suspended,
or ineligible contractors and participants.
(d) Drug-free workplace. The Drug-Free Workplace Act of 1988 (41
U.S.C. 701, et seq.) and HUD's implementing regulations at 2 CFR part
2429.
[61 FR 5202, Feb. 9, 1996, as amended at 65 FR 16715, Mar. 29, 2000; 72
FR 73491, Dec. 27, 2007; 76 FR 45167, July 28, 2011; 77 FR 5674, Feb. 3,
2012; 81 FR 64782, Sept. 21, 2016; 81 FR 80993, Nov. 17, 2016]
Sec. 5.106 Equal access in accordance with the individual's gender
identity in community planning and development programs.
(a) Applicability. This section applies to assistance provided under
Community Planning and Development (CPD) programs, including assistance
under the following CPD programs: HOME Investment Partnerships program
(24 CFR part 92), Housing Trust Fund program (24 CFR part 93), Community
Development Block Grant program (24 CFR part 570), Housing Opportunities
for Persons With AIDS program (24 CFR part 574), Emergency Solutions
Grants program (24 CFR part 576), Continuum of Care program (24 CFR part
578), or Rural Housing Stability Assistance Program (24 CFR part 579).
The requirements of this section apply to recipients and subrecipients,
as well as to owners, operators, and managers of shelters and other
buildings and facilities and providers of services funded in whole or in
part by any CPD program.
(b) Equal access in accordance with gender identity. The admissions,
occupancy, and operating policies and procedures of recipients,
subrecipients, owners, operators, managers, and providers identified in
paragraph (a) of this section, including policies and procedures to
protect privacy, health, safety, and security, shall be established or
amended, as necessary, and administered in a nondiscriminatory manner to
ensure that:
(1) Equal access to CPD programs, shelters, other buildings and
facilities, benefits, services, and accommodations is provided to an
individual in accordance with the individual's gender identity, and in a
manner that affords equal access to the individual's family;
(2) An individual is placed, served, and accommodated in accordance
with the gender identity of the individual;
(3) An individual is not subjected to intrusive questioning or asked
to provide anatomical information or documentary, physical, or medical
evidence of the individual's gender identity; and
(4) Eligibility determinations are made and assisted housing is made
available in CPD programs as required by Sec. 5.105(a)(2).
(c) Placement and accommodation in temporary, emergency shelters and
other buildings and facilities with shared sleeping quarters or shared
bathing facilities--(1) Placement and accommodation. Placement and
accommodation of an individual in temporary, emergency shelters and
other buildings and facilities with physical limitations or
configurations that require and are permitted to have shared sleeping
quarters or shared bathing facilities shall be made in accordance with
the individual's gender identity.
(2) Post-admission accommodations. A recipient, subrecipient, owner,
operator, manager, or provider must take nondiscriminatory steps that
may be necessary and appropriate to address privacy concerns raised by
residents or occupants and, as needed, update its admissions, occupancy,
and operating policies and procedures in accordance with paragraph (b)
of this section.
(d) Documentation and record retention. Providers shall document and
maintain records of compliance with the requirements in paragraph (b) of
this section for a period of 5 years.
[81 FR 64782, Sept. 21, 2016]
Sec. 5.107 Audit requirements for non-profit organizations.
Non-profit organizations subject to regulations in the part 200 and
part 800
[[Page 45]]
series of title 24 of the CFR shall comply with the audit requirements
of 2 CFR part 200, subpart F. For HUD programs, a non-profit
organization is the mortgagor or owner (as these terms are defined in
the regulations in the part 200 and part 800 series) and not a related
or affiliated organization or entity.
[62 FR 61617, Nov. 18, 1997, as amended at 80 FR 75934, Dec. 7, 2015]
Sec. 5.109 Equal participation of faith-based organizations in HUD
programs and activities.
(a) Purpose. Consistent with Executive Order 13279 (issued on
December 12, 2002, 67 FR 77141), entitled ``Equal Protection of the Laws
for Faith-Based and Community Organizations,'' as amended by Executive
Order 13559 (issued on November 17, 2010, 75 FR 71319), entitled
``Fundamental Principles and Policymaking Criteria for Partnerships With
Faith-Based and Other Neighborhood Organizations,'' this section
describes requirements for ensuring the equal participation of faith-
based organizations in HUD programs and activities. These requirements
apply to all HUD programs and activities, including all of HUD's Native
American Programs, except as may be otherwise noted in the respective
program regulations in title 24 of the Code of Federal Regulations
(CFR), or unless inconsistent with certain HUD program authorizing
statutes.
(b) Definitions. The following definitions apply to this section:
Direct Federal financial assistance means Federal financial
assistance provided when a Federal Government agency or an intermediary,
as defined in this section, selects the provider and either purchases
services from that provider (i.e., via a contract) or awards funds to
that provider to carry out an activity (e.g., via grant, sub-grant, sub-
award, or cooperative agreement). The recipients of sub-grants or sub-
awards that receive Federal financial assistance through State-
administered programs (e.g., flow-through programs) are considered
recipients of direct Federal financial assistance. In general, Federal
financial assistance shall be treated as direct, unless it meets the
definition of indirect Federal financial assistance.
Federal financial assistance means assistance that non-Federal
entities receive or administer in the forms of grants, contracts, loans,
loan guarantees, property, cooperative agreements, food commodities,
direct appropriations, or other assistance, but does not include a tax
credit, deduction, or exemption.
Indirect Federal financial assistance means Federal financial
assistance provided when the choice of the provider is placed in the
hands of the beneficiary, and the cost of that service is paid through a
voucher, certificate, or other similar means of Government-funded
payment. Federal financial assistance provided to an organization is
considered indirect when the Government program through which the
beneficiary receives the voucher, certificate, or other similar means of
Government-funded payment is neutral toward religion; the organization
receives the assistance as a result of a decision of the beneficiary,
not a decision of the Government; and the beneficiary has at least one
adequate secular option for the use of the voucher, certificate, or
other similar means of Government-funded payment.
Intermediary means an entity, including a nongovernmental
organization, acting under a contract, grant, or other agreement with
the Federal Government or with a State, tribal or local government that
accepts Federal financial assistance and distributes that assistance to
other entities that, in turn, carry out activities under HUD programs.
(c) Equal participation of faith-based organizations in HUD programs
and activities. Faith-based organizations are eligible, on the same
basis as any other organization, to participate in HUD programs and
activities. Neither the Federal Government, nor a State, tribal or local
government, nor any other entity that administers any HUD program or
activity, shall discriminate against an organization on the basis of the
organization's religious character or affiliation, or lack thereof. In
addition, decisions about awards of Federal financial assistance must be
free from
[[Page 46]]
political interference or even the appearance of such interference and
must be made on the basis of merit, not based on the religious character
or affiliation, or lack thereof, of an organization.
(d) Separation of explicitly religious activities from direct
Federal financial assistance.
(1) A faith-based organization that applies for, or participates in,
a HUD program or activity supported with Federal financial assistance
retains its independence and may continue to carry out its mission,
including the definition, development, practice, and expression of its
religious beliefs, provided that it does not use direct Federal
financial assistance that it receives (e.g., via contract, grant, sub-
grant, sub-award or cooperative agreement) to support or engage in any
explicitly religious activities (including activities that involve overt
religious content such as worship, religious instruction, or
proselytization), or in any other manner prohibited by law.
(2) A faith-based organization that receives direct Federal
financial assistance may use space (including a sanctuary, chapel,
prayer hall, or other space) in its facilities (including a temple,
synagogue, church, mosque, or other place of worship) to carry out
activities under a HUD program without removing religious art, icons,
scriptures, or other religious symbols. In addition, a faith-based
organization participating in a HUD program or activity retains its
authority over its internal governance, and may retain religious terms
in its organization's name, select its board members on a religious
basis, and include religious references in its organization's mission
statements and other governing documents.
(e) Explicitly religious activities. If an organization engages in
explicitly religious activities (including activities that involve overt
religious content such as worship, religious instruction, or
proselytization), the explicitly religious activities must be offered
separately, in time or location, from the programs or activities
supported by direct Federal financial assistance and participation must
be voluntary for the beneficiaries of the programs or activities that
receive direct Federal financial assistance.
(f) Intermediary responsibilities to ensure equal participation of
faith-based organizations in HUD programs. If an intermediary--acting
under a contract, grant, or other agreement with the Federal Government
or with a State, tribal or local government that is administering a
program supported by Federal financial assistance--is given the
authority to select a nongovernmental organization to receive Federal
financial assistance under a contract, grant, sub-grant, sub-award, or
cooperative agreement, the intermediary must ensure that such
organization complies with the requirements of this section. If the
intermediary is a nongovernmental organization, it retains all other
rights of a nongovernmental organization under the program's statutory
and regulatory provisions.
(g) Beneficiary protections. Faith-based organizations that carry
out programs or activities with direct Federal financial assistance from
HUD must give written notice to beneficiaries and prospective
beneficiaries of the programs or activities describing certain
protections available to them, as provided in this subsection. In
addition, if a beneficiary or prospective beneficiary objects to the
religious character of the organization carrying out the programs or
activities, that organization must promptly undertake reasonable efforts
to identify and refer the beneficiary or prospective beneficiary to an
alternative provider to which the beneficiary or prospective beneficiary
has no such objection.
(1) Written notice. The written notice must state that:
(i) The organization may not discriminate against a beneficiary or
prospective beneficiary on the basis of religion, religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(ii) The organization may not require beneficiaries to attend or
participate in any explicitly religious activities that are offered by
the organization, and any participation by beneficiaries in such
activities must be purely voluntary;
[[Page 47]]
(iii) The organization must separate, in time or location, any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance;
(iv) If a beneficiary objects to the religious character of the
organization, the organization must undertake reasonable efforts to
identify and refer the beneficiary to an alternative provider to which
the beneficiary has no such objection; and
(v) Beneficiaries or prospective beneficiaries may report an
organization's violation of these protections, including any denial of
services or benefits by an organization, by contacting or filing a
written complaint to HUD or the intermediary, if applicable.
(2) Timing of notice. The written notice must be given to
prospective beneficiaries before they enroll in any HUD program or
activity. When the nature of the program or activity or exigent
circumstances make it impracticable to provide the written notice in
advance, the organization must provide written notice to beneficiaries
of their protections at the earliest available opportunity.
(3) Referral requirements. (i) If a beneficiary or prospective
beneficiary of a program or activity that receives direct Federal
financial assistance from HUD objects to the religious character of an
organization that carries out the program or activity, that organization
must promptly undertake reasonable efforts to identify and refer the
beneficiary or prospective beneficiary to an alternative provider to
which the beneficiary or prospective beneficiary has no such objection.
(ii) A referral may be made to another faith-based organization, if
the beneficiary or prospective beneficiary has no objection to that
provider based on the provider's religious character. But if the
beneficiary or prospective beneficiary requests a secular provider, and
a secular provider is available, then a referral must be made to that
provider.
(iii) Except for activities carried out by telephone, Internet, or
similar means, the referral must be to an alternative provider that is
in reasonable geographic proximity to the organization making the
referral and that carries out activities that are similar in substance
and quality to those offered by the organization. The alternative
provider also must have the capacity to accept additional beneficiaries.
(iv) If the organization determines that it is unable to identify an
alternative provider, the organization shall promptly notify the
intermediary or, if there is no intermediary, HUD. If HUD or an
intermediary is notified that an organization is unable to identify an
alternative provider, HUD or the intermediary, as appropriate, shall
promptly determine whether there is any other suitable alternative
provider to which the beneficiary or prospective beneficiary may be
referred. An intermediary that receives a request for assistance in
identifying an alternative provider may request assistance from HUD.
(4) Recordkeeping. A faith-based organization providing a referral
under paragraph (g)(3) of this section must document a beneficiary or
prospective beneficiary's request for a referral, whether the
beneficiary or prospective beneficiary was referred to another provider,
to which provider the beneficiary or prospective beneficiary was
referred, and if the beneficiary or prospective beneficiary contacted
the alternative provider, unless the beneficiary or prospective
beneficiary requests no follow up.
(h) Nondiscrimination requirements. Any organization that receives
Federal financial assistance under a HUD program or activity shall not,
in providing services or carrying out activities with such assistance,
discriminate against a beneficiary or prospective beneficiary on the
basis of religion, religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice.
However, this section does not require any organization that only
receives indirect Federal financial assistance to modify its program or
activities to accommodate a beneficiary that selects the organization to
receive indirect aid.
(i) Exemption from Title VII employment discrimination requirements.
A religious organization's exemption from the Federal prohibition on
employment discrimination on the basis of religion, set forth in section
702(a) of the Civil
[[Page 48]]
Rights Act of 1964 (42 U.S.C. 2000e-1), is not forfeited when the
organization participates in a HUD program. Some HUD programs, however,
contain independent statutory provisions that impose certain
nondiscrimination requirements on all grantees. Accordingly, grantees
should consult with the appropriate HUD program office to determine the
scope of applicable requirements.
(j) Acquisition, construction, and rehabilitation of structures.
Direct Federal financial assistance may be used for the acquisition,
construction, or rehabilitation of structures only to the extent that
those structures are used for conducting eligible activities under a HUD
program or activity. Where a structure is used for both eligible and
explicitly religious activities (including activities that involve overt
religious content such as worship, religious instruction, or
proselytization), direct Federal financial assistance may not exceed the
cost of the share of acquisition, construction, or rehabilitation
attributable to eligible activities in accordance with the cost
accounting requirements applicable to the HUD program or activity.
However, acquisition, construction, or rehabilitation of sanctuaries,
chapels, or other rooms that a HUD-funded faith-based organization uses
as its principal place of worship, may not be paid with direct Federal
financial assistance. Disposition of real property by a faith-based
organization after its use for an authorized purpose, or any change in
use of the property from an authorized purpose, is subject to
Government-wide regulations governing real property disposition (2 CFR
part 200, subpart D) and the HUD program regulations, as directed by
HUD.
(k) Commingling of Federal and State, tribal, and local funds. If a
State, tribal, or local government voluntarily contributes its own funds
to supplement direct Federal financial assistance for an activity, the
State, tribal or local government has the option to segregate those
funds or commingle them with the direct Federal financial assistance.
However, if the funds are commingled, the requirements of this section
apply to all of the commingled funds. Further, if a State, tribal, or
local government is required to contribute matching funds to supplement
direct Federal financial assistance for an activity, the matching funds
are considered commingled with the direct Federal financial assistance
and, therefore, subject to the requirements of this section. Some HUD
programs' requirements govern any activity assisted under those
programs. Accordingly, recipients should consult with the appropriate
HUD program office to determine the scope of applicable requirements.
[69 FR 41717, July 9, 2004, as amended at 80 FR 75934, Dec. 7, 2015; 81
FR 19416, Apr. 4, 2016]
Sec. 5.110 Waivers.
Upon determination of good cause, the Secretary may, subject to
statutory limitations, waive any provision of this title and delegate
this authority in accordance with section 106 of the Department of
Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3535(q)).
Sec. 5.111 Housing counseling.
(a) Any housing counseling, including homeownership counseling or
rental housing counseling, as defined in Sec. 5.100, required under or
provided in connection with any program administered by HUD shall be
provided only by organizations and counselors certified by the Secretary
under 24 CFR part 214 to provide housing counseling, consistent with 12
U.S.C. 1701x.
(b) For purposes of this section, required under or provided in
connection with any program administered by HUD means:
(1) Housing counseling required by statute, regulation, Notice of
Funding Availability (NOFA), or otherwise required by HUD;
(2) Housing counseling that is funded under a HUD program;
(3) Housing counseling that is required by a grantee or subgrantee
of a HUD program as a condition of receiving assistance under the HUD
program; or
(4) Housing counseling to which a family assisted under a HUD
program is referred, by a grantee or subgrantee of the HUD program.
[81 FR 90657, Dec. 14, 2016]
[[Page 49]]
Affirmatively Furthering Fair Housing
Source: Sections 5.150 through 5.180 appear at 80 FR 42352, July 16,
2015, unless otherwise noted.
Sec. 5.150 Affirmatively Furthering Fair Housing: Purpose.
Pursuant to the affirmatively furthering fair housing mandate in
section 808(e)(5) of the Fair Housing Act, and in subsequent legislative
enactments, the purpose of the Affirmatively Furthering Fair Housing
(AFFH) regulations in Sec. Sec. 5.150 through 5.180 is to provide
program participants with an effective planning approach to aid program
participants in taking meaningful actions to overcome historic patterns
of segregation, promote fair housing choice, and foster inclusive
communities that are free from discrimination. The regulations establish
specific requirements for the development and submission of an
Assessment of Fair Housing (AFH) by program participants (including
local governments, States, and public housing agencies (PHAs)), and the
incorporation and implementation of that AFH into subsequent
consolidated plans and PHA Plans in a manner that connects housing and
community development policy and investment planning with meaningful
actions that affirmatively further fair housing. A program participant's
strategies and actions must affirmatively further fair housing and may
include various activities, such as developing affordable housing, and
removing barriers to the development of such housing, in areas of high
opportunity; strategically enhancing access to opportunity, including
through: Targeted investment in neighborhood revitalization or
stabilization; preservation or rehabilitation of existing affordable
housing; promoting greater housing choice within or outside of areas of
concentrated poverty and greater access to areas of high opportunity;
and improving community assets such as quality schools, employment, and
transportation.
Sec. 5.151 Affirmatively Furthering Fair Housing: Implementation.
Section 5.160 of the AFH regulations provides the date by which
program participants must submit their first AFH. A program
participant's AFH submission date is the date by which the program
participant must comply with the regulations in Sec. Sec. 5.150 through
5.180. Until such time, the program participant shall continue to
conduct an analysis of impediments, as required of the program
participant under one or more of the HUD programs listed in Sec. 5.154,
in accordance with requirements in effect prior to August 17, 2015.
Sec. 5.152 Definitions.
For purposes of Sec. Sec. 5.150 through 5.180, the terms
``consolidated plan,'' ``consortium,'' ``unit of general local
government,'' ``jurisdiction,'' and ``State'' are defined in 24 CFR part
91. For PHAs, ``jurisdiction'' is defined in 24 CFR 982.4. The following
additional definitions are provided solely for purposes of Sec. Sec.
5.150 through 5.180 and related amendments in 24 CFR parts 91, 92, 570,
574, 576, and 903:
Affirmatively furthering fair housing means taking meaningful
actions, in addition to combating discrimination, that overcome patterns
of segregation and foster inclusive communities free from barriers that
restrict access to opportunity based on protected characteristics.
Specifically, affirmatively furthering fair housing means taking
meaningful actions that, taken together, address significant disparities
in housing needs and in access to opportunity, replacing segregated
living patterns with truly integrated and balanced living patterns,
transforming racially and ethnically concentrated areas of poverty into
areas of opportunity, and fostering and maintaining compliance with
civil rights and fair housing laws. The duty to affirmatively further
fair housing extends to all of a program participant's activities and
programs relating to housing and urban development.
Assessment of Fair Housing (assessment or AFH) means the analysis
undertaken pursuant to Sec. 5.154 that includes an analysis of fair
housing data, an assessment of fair housing issues and contributing
factors, and an identification
[[Page 50]]
of fair housing priorities and goals, and is conducted and submitted to
HUD using the Assessment Tool. The AFH may be conducted and submitted by
an individual program participant (individual AFH), or may be a single
AFH conducted and submitted by two or more program participants (joint
AFH) or two or more program participants, where at least two of which
are consolidated plan program participants (regional AFH).
Assessment Tool refers collectively to any forms or templates and
the accompanying instructions provided by HUD that program participants
must use to conduct and submit an AFH pursuant to Sec. 5.154. HUD may
provide different Assessment Tools for different types of program
participants. In accordance with the Paperwork Reduction Act (44 U.S.C.
Chapter 35) (PRA), the Assessment Tool will be subject to periodic
notice and opportunity to comment in order to maintain the approval of
the Assessment Tool as granted by the Office of Management and Budget
(OMB) under the PRA.
Community participation, as required in Sec. 5.158, means a
solicitation of views and recommendations from members of the community
and other interested parties, a consideration of the views and
recommendations received, and a process for incorporating such views and
recommendations into decisions and outcomes. For HUD regulations
implementing the Housing and Community Development Act of 1974, the
statutory term for ``community participation'' is ``citizen
participation,'' and, therefore, the regulations in 24 CFR parts 91, 92,
570, 574, and 576 use this term.
Consolidated plan program participant means any entity specified in
Sec. 5.154(b)(1).
Contributing factor. See definition of ``fair housing contributing
factor'' in this section.
Data. The term ``data'' refers collectively to the sources of data
provided in paragraphs (1) and (2) of this definition. When
identification of the specific source of data in paragraph (1) or (2) is
necessary, the specific source (HUD-provided data or local data) will be
stated.
(1) HUD-provided data. As more fully addressed in the Assessment
Tool, the term ``HUD-provided data'' refers to HUD-provided metrics,
statistics, and other quantified information required to be used with
the Assessment Tool. HUD-provided data will not only be provided to
program participants but will be posted on HUD's Web site for
availability to all of the public;
(2) Local data. As more fully addressed in the Assessment Tool, the
term ``local data'' refers to metrics, statistics, and other quantified
information, subject to a determination of statistical validity by HUD,
relevant to the program participant's geographic areas of analysis, that
can be found through a reasonable amount of search, are readily
available at little or no cost, and are necessary for the completion of
the AFH using the Assessment Tool.
Disability. (1) The term ``disability'' means, with respect to an
individual:
(i) A physical or mental impairment that substantially limits one or
more major life activities of such individual;
(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment.
(2) The term ``disability'' as used herein shall be interpreted
consistent with the definition of such term under section 504 of the
Rehabilitation Act of 1973, as amended by the ADA Amendments Act of
2008. This definition does not change the definition of ``disability''
or ``disabled person'' adopted pursuant to a HUD program statute for
purposes of determining an individual's eligibility to participate in a
housing program that serves a specified population.
Disproportionate housing needs refers to a condition in which there
are significant disparities in the proportion of members of a protected
class experiencing a category of housing need when compared to the
proportion of members of any other relevant groups or the total
population experiencing that category of housing need in the applicable
geographic area. For purposes of this definition, categories of housing
need are based on such factors as cost burden, severe cost burden,
overcrowding, and substandard housing conditions, as
[[Page 51]]
those terms are applied in the Assessment Tool.
Fair housing choice means that individuals and families have the
information, opportunity, and options to live where they choose without
unlawful discrimination and other barriers related to race, color,
religion, sex, familial status, national origin, or disability. Fair
housing choice encompasses:
(1) Actual choice, which means the existence of realistic housing
options;
(2) Protected choice, which means housing that can be accessed
without discrimination; and
(3) Enabled choice, which means realistic access to sufficient
information regarding options so that any choice is informed. For
persons with disabilities, fair housing choice and access to opportunity
include access to accessible housing and housing in the most integrated
setting appropriate to an individual's needs as required under Federal
civil rights law, including disability-related services that an
individual needs to live in such housing.
Fair housing contributing factor (or contributing factor) means a
factor that creates, contributes to, perpetuates, or increases the
severity of one or more fair housing issues. Goals in an AFH are
designed to overcome one or more contributing factors and related fair
housing issues, as provided in Sec. 5.154.
Fair housing issue means a condition in a program participant's
geographic area of analysis that restricts fair housing choice or access
to opportunity, and includes such conditions as ongoing local or
regional segregation or lack of integration, racially or ethnically
concentrated areas of poverty, significant disparities in access to
opportunity, disproportionate housing needs, and evidence of
discrimination or violations of civil rights law or regulations related
to housing. Participation in ``housing programs serving specified
populations,'' as defined in this section, does not present a fair
housing issue of segregation, provided that such programs are
administered by program participants so that the programs comply with
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4)
(Nondiscrimination in Federally Assisted Programs); the Fair Housing Act
(42 U.S.C. 3601-19), including the duty to affirmatively further fair
housing; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794);
the Americans with Disabilities Act (42 U.S.C. 12101, et seq.); and
other Federal civil rights statutes and regulations.
Fair housing enforcement and fair housing outreach capacity means
the ability of a jurisdiction, and organizations located in the
jurisdiction, to accept complaints of violations of fair housing laws,
investigate such complaints, obtain remedies, engage in fair housing
testing, and educate community members about fair housing laws and
rights. This definition covers any State or local agency that enforces a
law substantially equivalent to the Fair Housing Act (see 24 CFR part
115) and any organization participating in the Fair Housing Initiative
Programs (see 24 CFR part 125).
Geographic area means a jurisdiction, region, State, Core-Based
Statistical Area (CBSA), or another applicable area (e.g., census tract,
neighborhood, Zip code, block group, housing development, or portion
thereof) relevant to the analysis required to complete the assessment of
fair housing, as specified in the Assessment Tool.
Housing programs serving specified populations. Housing programs
serving specified populations are HUD and Federal housing programs,
including designations in the programs, as applicable, such as HUD's
Supportive Housing for the Elderly, Supportive Housing for Persons with
Disabilities, homeless assistance programs under the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11301 et seq.), and housing
designated under section 7 of the United States Housing Act of 1937 (42
U.S.C. 1437e), that:
(1) Serve specific identified populations; and
(2) Comply with title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d-2000d-4) (Nondiscrimination in Federally Assisted Programs); the
Fair Housing Act (42 U.S.C. 3601-19), including the duty to
affirmatively further fair housing; section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794); the Americans with Disabilities Act (42
U.S.C. 12101, et seq.); and other Federal civil rights statutes and
regulations.
[[Page 52]]
Insular area has the same meaning as provided in Sec. 570.405.
Integration means a condition, within the program participant's
geographic area of analysis, as guided by the Assessment Tool, in which
there is not a high concentration of persons of a particular race,
color, religion, sex, familial status, national origin, or having a
disability or a particular type of disability when compared to a broader
geographic area. For individuals with disabilities, integration also
means that such individuals are able to access housing and services in
the most integrated setting appropriate to the individual's needs. The
most integrated setting is one that enables individuals with
disabilities to interact with persons without disabilities to the
fullest extent possible, consistent with the requirements of the
Americans with Disabilities Act (42 U.S.C. 12101 et seq.) and section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). See 28 CFR part
35, appendix B (addressing 28 CFR 35.130 and providing guidance on the
American with Disabilities Act regulation on nondiscrimination on the
basis of disability in State and local government services).
Joint participants refers to two or more program participants
conducting and submitting a single AFH (a joint AFH), in accordance with
Sec. 5.156 and 24 CFR 903.15(a)(1) and (2), as applicable.
Local knowledge. As more fully addressed in the Assessment Tool,
local knowledge means information to be provided by the program
participant that relates to the participant's geographic areas of
analysis and that is relevant to the program participant's AFH, is known
or becomes known to the program participant, and is necessary for the
completion of the AFH using the Assessment Tool.
Meaningful actions means significant actions that are designed and
can be reasonably expected to achieve a material positive change that
affirmatively furthers fair housing by, for example, increasing fair
housing choice or decreasing disparities in access to opportunity.
Program participants means any entities specified in Sec. 5.154(b).
Protected characteristics are race, color, religion, sex, familial
status, national origin, having a disability, and having a type of
disability.
Protected class means a group of persons who have the same protected
characteristic; e.g., a group of persons who are of the same race are a
protected class. Similarly, a person who has a mobility disability is a
member of the protected class of persons with disabilities and a member
of the protected class of persons with mobility disabilities.
Qualified public housing agency (Qualified PHA). Refers to a PHA:
(1) For which the sum of:
(i) The number of public housing dwelling units administered by the
PHA; and
(ii) The number of vouchers under section 8(o) of the United States
Housing Act of 1937 (42 U.S.C. 1437f(o)) administered by the PHA is 550
or fewer; and
(2) That is not designated under section 6(j)(2) of the United
States Housing Act of 1937 as a troubled PHA, and does not have a
failing score under the Section 8 Management Assessment Program (SEMAP)
during the prior 12 months.
Racially or ethnically concentrated area of poverty means a
geographic area with significant concentrations of poverty and minority
populations.
Regionally collaborating participants refers to joint participants,
at least two of which are consolidated plan program participants. A PHA
may participate in a regional assessment in accordance with PHA Plan
participation requirements under 24 CFR 903.15(a)(1). Regionally
collaborating participants conduct and submit a single AFH (regional
AFH) in accordance with Sec. 5.156.
Segregation means a condition, within the program participant's
geographic area of analysis, as guided by the Assessment Tool, in which
there is a high concentration of persons of a particular race, color,
religion, sex, familial status, national origin, or having a disability
or a type of disability in a particular geographic area when compared to
a broader geographic area. For persons with disabilities, segregation
includes a condition in which the housing or services are not in the
most integrated setting appropriate to an individual's needs in
accordance with the
[[Page 53]]
requirements of the Americans with Disabilities Act (42 U.S.C. 12101, et
seq.), and section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794). (See 28 CFR part 35, appendix B, addressing 25 CFR 35.130.)
Participation in ``housing programs serving specified populations'' as
defined in this section does not present a fair housing issue of
segregation, provided that such programs are administered to comply with
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4)
(Nondiscrimination in Federally Assisted Programs): The Fair Housing Act
(42 U.S.C. 3601-19), including the duty to affirmatively further fair
housing: section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794);
the Americans with Disabilities Act (42 U.S.C. 12101, et seq.); and
other Federal civil rights statutes and regulations.
Significant disparities in access to opportunity means substantial
and measurable differences in access to educational, transportation,
economic, and other important opportunities in a community, based on
protected class related to housing.
Sec. 5.154 Assessment of Fair Housing (AFH).
(a) General. To develop a successful affirmatively furthering fair
housing strategy, it is central to assess the elements and factors that
cause, increase, contribute to, maintain, or perpetuate segregation,
racially or ethnically concentrated areas of poverty, significant
disparities in access to opportunity, and disproportionate housing
needs. For HUD program participants already required to develop plans
for effective uses of HUD funds consistent with the statutory
requirements and goals governing such funds, an AFH will be integrated
into such plans.
(b) Requirement to submit an AFH. In furtherance of the statutory
obligation to affirmatively further fair housing, an AFH must be
developed following the AFH consultation, content, and submission
requirements described in Sec. Sec. 5.150 through 5.180, and submitted
in a manner and form prescribed by HUD by the following entities:
(1) Jurisdictions and Insular Areas that are required to submit
consolidated plans for the following programs:
(i) The Community Development Block Grant (CDBG) program (see 24 CFR
part 570, subparts D and I);
(ii) The Emergency Solutions Grants (ESG) program (see 24 CFR part
576);
(iii) The HOME Investment Partnerships (HOME) program (see 24 CFR
part 92); and
(iv) The Housing Opportunities for Persons With AIDS (HOPWA) program
(see 24 CFR part 574).
(2) Public housing agencies (PHAs) receiving assistance under
sections 8 or 9 of the United States Housing Act of 1937 (42 U.S.C.
1437f or 42 U.S.C.1437g).
(c) Fair housing data. Program participants will use HUD-provided
data, as defined within the definition of ``data'' in Sec. 5.152, and
supplement the HUD-provided data, as needed, with local data and local
knowledge, as guided by the Assessment Tool.
(d) Content. Using the Assessment Tool prescribed by HUD, each
program participant shall conduct an AFH for the purpose of examining
its programs, jurisdiction, and region, and identifying goals to
affirmatively further fair housing and to inform fair housing strategies
in the consolidated plan, annual action plan, the PHA Plan and any other
plan incorporated therein, and community plans including, but not
limited to, education, transportation, or environmental related plans.
The AFH's analysis, goals, and priorities will address integration and
segregation; racially or ethnically concentrated areas of poverty;
disparities in access to opportunity; and disproportionate housing needs
based on race, color, religion, sex, familial status, national origin,
and disability. The AFH will assess the jurisdiction's fair housing
enforcement and fair housing outreach capacity. At a minimum, the AFH
will include the following elements:
(1) Summary of fair housing issues and capacity. The AFH must
include a summary of fair housing issues in the jurisdiction, including
any findings, lawsuits, enforcement actions, settlements, or judgments
related to fair housing or other civil rights laws, an assessment of
compliance with existing fair housing laws and regulations, and an
assessment of the jurisdiction's fair
[[Page 54]]
housing enforcement and fair housing outreach capacity.
(2) Analysis of data. Using HUD-provided data, local data, local
knowledge, including information gained through community participation,
and the Assessment Tool, the program participant will undertake the
analysis required by this section. This analysis will address the
following to the extent the data or local knowledge are informative of
the following:
(i) Identification of integration and segregation patterns and
trends based on race, color, religion, sex, familial status, national
origin, and disability within the jurisdiction and region;
(ii) Identification of racially or ethnically concentrated areas of
poverty within the jurisdiction and region;
(iii) Identification of significant disparities in access to
opportunity for any protected class within the jurisdiction and region;
and
(iv) Identification of disproportionate housing needs for any
protected class within the jurisdiction and region.
(3) Assessment of fair housing issues. Using the Assessment Tool
provided by HUD, the AFH will identify the contributing factors for
segregation, racially or ethnically concentrated areas of poverty,
disparities in access to opportunity, and disproportionate housing needs
as identified under paragraph (d)(2) of this section.
(4) Identification of fair housing priorities and goals. Consistent
with the identification of fair housing issues, and the analysis and
assessment conducted under paragraphs (d)(1) through (3) of this
section, the AFH must:
(i) Identify and discuss the fair housing issues arising from the
assessment; and
(ii) Identify significant contributing factors, prioritize such
factors, and justify the prioritization of the contributing factors that
will be addressed in the program participant's fair housing goals. In
prioritizing contributing factors, program participants shall give
highest priority to those factors that limit or deny fair housing choice
or access to opportunity, or negatively impact fair housing or civil
rights compliance; and
(iii) Set goals for overcoming the effects of contributing factors
as prioritized in accordance with paragraph (d)(4)(ii) of this section.
For each goal, a program participant must identify one or more
contributing factors that the goal is designed to address, describe how
the goal relates to overcoming the identified contributing factor(s) and
related fair housing issue(s), and identify the metrics and milestones
for determining what fair housing results will be achieved. For
instance, where segregation in a development or geographic area is
determined to be a fair housing issue, with at least one significant
contributing factor, HUD would expect the AFH to include one or more
goals to reduce the segregation.
(5) Strategies and actions. To implement goals and priorities in an
AFH, strategies and actions shall be included in program participants'
consolidated plans, Annual Action Plans, and PHA Plans (including any
plans incorporated therein), and need not be reflected in their AFH.
Strategies and actions must affirmatively further fair housing and may
include, but are not limited to, enhancing mobility strategies and
encouraging development of new affordable housing in areas of
opportunity, as well as place-based strategies to encourage community
revitalization, including preservation of existing affordable housing,
including HUD-assisted housing.
(6) Summary of community participation. The AFH must include a
concise summary of the community participation process, public comments,
and efforts made to broaden community participation in the development
of the AFH; a summary of the comments, views, and recommendations,
received in writing, or orally at public hearings, during the community
participation process; and a summary of any comments, views, and
recommendations not accepted by the program participant and the reasons
for nonacceptance.
(7) Review of progress achieved since submission of prior AFH. For
each AFH submitted after the first AFH submission, the program
participant will provide a summary of progress achieved in meeting the
goals and associated metrics and milestones of the prior AFH, and
identify any barriers that
[[Page 55]]
impeded or prevented achievement of goals.
Sec. 5.156 Joint and Regional AFHs.
(a) General. For the purposes of sharing resources and addressing
fair housing issues from a broader perspective, program participants are
encouraged to collaborate to conduct and submit a single AFH, either a
joint AFH or regional AFH (as defined in Sec. 5.152), for the purpose
of evaluating fair housing issues and contributing factors.
(1) Collaborating program participants, whether joint participants
or regionally collaborating participants, need not be located in
contiguous jurisdictions and may cross State boundaries, provided that
the collaborating program participants are located within the same Core
Based Statistical Area (CBSA), as defined by the United States Office of
Management and Budget (OMB) at the time of submission of the joint or
regional AFH.
(2) Program participants, whether contiguous or noncontiguous, that
are either not located within the same CBSA or that are not located
within the same State and seek to collaborate on an AFH, must submit a
written request to HUD for approval of the collaboration, stating why
the collaboration is appropriate. The collaboration may proceed upon
approval by HUD.
(3) Collaborating program participants must designate, through
express written consent, one participant as the lead entity to oversee
the submission of the joint or regional AFH on behalf of all
collaborating program participants. When collaborating to submit a joint
or regional AFH, program participants may divide work as they choose,
but all program participants are accountable for the analysis and any
joint goals and priorities, and each collaborating program participant
must sign the AFH submitted to HUD. Collaborating program participants
are also accountable for their individual analysis, goals, and
priorities to be included in the collaborative AFH.
(4) Program participants that intend to prepare either a joint or
regional AFH shall promptly notify HUD of such intention and provide HUD
with a copy of their written agreement.
(b) Coordinating program years and submission deadlines. (1) To the
extent practicable, all collaborating program participants must be on
the same program year and fiscal year (as applicable) before submission
of the joint AFH or regional AFH. (See Sec. 5.160 and 24 CFR 91.10 and
903.5.) The applicable procedures for changing consolidated plan program
participant program year start dates, if necessary, are described in 24
CFR 91.10. The applicable procedures for changing PHA fiscal year
beginning dates, if necessary, are described in 24 CFR part 903.
(2) If alignment of a program year or fiscal year is not
practicable, the submission deadline for a joint AFH or regional AFH
must be based on the designated lead entity's program year start date or
fiscal year beginning date (as applicable), as provided in Sec.
5.160(c). Within 12 months after the date of AFH acceptance, each
collaborating program participant that has a program year start date, or
fiscal year beginning date, earlier than the designated lead entity must
make appropriate revisions to its full consolidated plan (as described
in Sec. 91.15(b)(2) of this chapter), or PHA Plan and any plan
incorporated therein, to incorporate strategies and proposed actions
consistent with the fair housing goals, issues, and other elements
identified in the joint AFH or regional AFH.
(c) Procedures for withdrawal from a joint or regional
collaboration. A program participant that, for any reason, decides to
withdraw from a previously arranged collaborative AFH must promptly
notify HUD of the withdrawal. HUD will work with the withdrawing program
participant, as well as the remaining collaborative participants, to
determine whether a new submission date is needed for the withdrawing
participant or the remaining participants. If a new submission date is
needed for the withdrawing participant or the remaining participants,
HUD will establish a submission date that is as close as feasible to the
originally intended submission date and is no later than the original
joint or regional submission date unless good cause for an extension is
shown.
(d) Community participation. Collaborating program participants must
have
[[Page 56]]
a plan for community participation that complies with the requirements
of Sec. Sec. 5.150 through 5.180. The community participation process
must include residents, and other interested members of the public, in
the jurisdictions of each collaborating program participant, and not
just those of the lead entity. In addition, the community participation
process must be conducted in a manner sufficient for each consolidated
plan program participant collaborating in a joint AFH or regional AFH to
certify that it is following its applicable citizen participation plan,
and for each PHA, collaborating in a joint AFH or regional AFH, to
satisfy the notice and comment requirements in 24 CFR part 903. To the
extent that public notice and comment periods provided in Sec. Sec.
5.150 through 5.180 or in the consolidated plan or PHA plan regulations
differ, the longer period shall apply. A material change that requires
any collaborating program participant to revise its AFH pursuant to
Sec. 5.164(a)(1) will trigger a requirement to revise the joint or
regional AFH.
(e) Content of the joint or regional AFH. A joint or regional AFH
must include the elements required under Sec. 5.154(d). A joint or
regional AFH does not relieve each collaborating program participant
from its obligation to analyze and address local and regional fair
housing issues and contributing factors that affect housing choice, and
to set priorities and goals for its geographic area to overcome the
effects of contributing factors and related fair housing issues.
Sec. 5.158 Community participation, consultation, and coordination.
(a) General. To ensure that the AFH is informed by meaningful
community participation, program participants must give the public
reasonable opportunities for involvement in the development of the AFH
and in the incorporation of the AFH into the consolidated plan, PHA
Plan, and other required planning documents. To ensure that the AFH, the
consolidated plan, and the PHA Plan and any plan incorporated therein
are informed by meaningful community participation, program participants
should employ communications means designed to reach the broadest
audience. Such communications may be met, as appropriate, by publishing
a summary of each document in one or more newspapers of general
circulation, and by making copies of each document available on the
Internet, on the program participant's official government Web site, and
as well at libraries, government offices, and public places. Program
participants shall ensure that all aspects of community participation
are conducted in accordance with fair housing and civil rights laws,
including title VI of the Civil Rights Act of 1964 and the regulations
at 24 CFR part 1; section 504 of the Rehabilitation Act of 1973 and the
regulations at 24 CFR part 8; and the Americans with Disabilities Act
and the regulations at 28 CFR parts 35 and 36, as applicable. At a
minimum, whether a program participant is preparing an AFH individually
or in combination with other program participants, AFH community
participation must include the following for consolidated plan program
participants and PHAs (as applicable):
(1) Consolidated plan program participants. The consolidated plan
program participant must follow the policies and procedures described in
its applicable citizen participation plan, adopted pursuant to 24 CFR
part 91 (see 24 CFR 91.105, 91.115, and 91.401), in the process of
developing the AFH, obtaining community feedback, and addressing
complaints. The jurisdiction must consult with the agencies and
organizations identified in consultation requirements at 24 CFR part 91
(see 24 CFR 91.100, 91.110, and 91.235).
(2) PHAs. PHAs must follow the policies and procedures described in
24 CFR 903.13, 903.15, 903.17, and 903.19 in the process of developing
the AFH, obtaining Resident Advisory Board and community feedback, and
addressing complaints.
(b) Coordination. (1) As described in 903.15, a PHA may fulfill its
responsibility to conduct an AFH by:
(i) Participating with a consolidated plan program participant,
including State jurisdictions; or
(ii) Participating with one or more PHAs in the planning, and
preparation of the AFH; or
(iii) Preparing its own AFH.
[[Page 57]]
(2) When working with other program participants, PHAs are
encouraged to enter into Memorandums of Understanding (MOUs) to clearly
define the functions, level of member participation, method of dispute
resolution, and decisionmaking process of the program participants, in
the creation of the AFH.
Sec. 5.160 Submission requirements.
(a) First AFH--(1) Submission deadline for program participants. (i)
For each program participant listed in this paragraph (a)(1)(i), the
first AFH shall be submitted no later than 270 calendar days prior to
the start of:
(A) For consolidated plan participants not covered in paragraph
(a)(1)(i)(B) or (C) of this section, the program year that begins on or
after January 1, 2017 for which a new consolidated plan is due, as
provided in 24 CFR 91.15(b)(2); and
(B) For consolidated plan participants whose fiscal year (FY) 2015
CDBG grant is $500,000 or less, the program year that begins on or after
January 1, 2018 for which a new consolidated plan is due, as provided in
24 CFR 91.15(b)(2); and
(C) For consolidated plan participants that are Insular Areas or
States, the program year that begins on or after January 1, 2018 for
which a new consolidated plan is due, as provided in 24 CFR 91.15(b)(2);
and
(D) For PHAs, except for qualified PHAs, the PHA's fiscal year that
begins on or after January 1, 2018 for which a new 5-year plan is due,
as provided in 24 CFR 903.5; and
(E) For qualified PHAs, the PHA's fiscal year that begins on or
after January 1, 2019 for which a new 5-year plan is due, as provided in
24 CFR 903.5; and
(F) For joint or regional program participants, the date provided
under this paragraph (a)(1) or under paragraph (a)(2) of this section,
dependent upon the program participant that is selected to be the lead
entity, as provided in Sec. 5.156(b)(2).
(ii) If the time frame specified in this paragraph (a)(1) would
result in a first AFH submission date that is less than 9 months after
the date of publication of the Assessment Tool that is applicable to the
program participant or lead entity, the participant(s)' submission
deadline will be extended as specified in that Assessment Tool
publication to a date that will not be less than 9 months from the date
of publication of the Assessment Tool.
(2) Exceptions to the first submission deadline for recently
completed Regional Analysis of Impediments (RAI). An entitlement
jurisdiction subject to the submission deadline in paragraph (a)(1) of
this section is not required to submit an AFH by the deadline specified
in such paragraph if the entitlement jurisdiction has completed a HUD-
approved RAI in accordance with a grant awarded under HUD's FY 2010 or
2011 Sustainable Communities Competition and submitted the RAI within 30
months prior to the date when the program participant's AFH is due as
provided under this section.
(3) Compliance with existing requirements until first AFH
submission. Except as provided in paragraph (a)(4) of this section,
until such time as program participants are required to submit an AFH,
the program participant shall continue to conduct an analysis of
impediments, as required of the program participant by one or more of
the HUD programs listed in Sec. 5.154, in accordance with requirements
in effect prior to August 17, 2015.
(4) New program participants. For a new program participant that has
not submitted a consolidated plan or PHA plan as of August 17, 2015, HUD
will provide the new program participant with a deadline for submission
of its first AFH and the strategies and actions to implement an accepted
AFH, which shall be incorporated into the program participant's
consolidated plan or PHA plan, as applicable, within 18 months of the
start date of its first program year or fiscal year, as applicable.
(b) Second and subsequent AFHs. After the first AFH, for all program
participants, subsequent AFHs are due 195 calendar days before the start
of the first year of the next 3 to 5-year cycle (as applicable), as
described in paragraph (a)(1) of this section; that is, the subsequent
AFH is to precede the next strategic plan under 24 CFR 91.15(b)(2) or 5-
year plan under 24 CFR 903.5.
[[Page 58]]
(c) Collaborative AFHs. All collaborative program participants,
whether joint participants or regionally collaborating participants,
will select a lead entity and submit the AFH according to that entity's
schedule.
(d) Frequency. All program participants shall submit an AFH no less
frequently than once every 5 years, or at such time agreed upon in
writing by HUD and the program participant, in order to coordinate the
AFH submission with time frames used for consolidated plans,
participation in a regional AFH, cooperation agreements, PHA Plans, or
other plans. (See 24 CFR 91.15(b)(2) and 903.15.)
(e) Certification. Each program participant, including program
participants submitting a joint or regional AFH, must certify that it
will take meaningful actions to further the goals identified in its AFH
conducted in accordance with the requirements in Sec. Sec. 5.150
through 5.180 and 24 CFR 91.225(a)(1), 91.325(a)(1), 91.425(a)(1),
570.487(b)(1), 570.601, 903.7(o), and 903.15(d), as applicable. The
certification will be required at the time a program participant submits
its first AFH and for each AFH thereafter. If a PHA Plan, consolidated
plan, Action Plan, or other submission requiring a civil rights-related
certification is due prior to the time of submission of the AFH, the
participant will complete a certification, in a form provided by HUD,
that it will affirmatively further fair housing, or complete such other
certification that HUD may require in accordance with applicable program
regulations in effect before August 17, 2015.
[80 FR 42352, July 16, 2015; 80 FR 46487, Aug. 5, 2015]
Sec. 5.162 Review of AFH.
(a) Review and acceptance of AFH--(1) General. HUD's review of an
AFH is to determine whether the program participant has met the
requirements for providing its analysis, assessment, and goal setting,
as set forth in Sec. 5.154(d). The AFH will be deemed accepted after 60
calendar days after the date that HUD receives the AFH, unless on or
before that date, HUD has provided notification that HUD does not accept
the AFH. In its notification, HUD will inform the program participant in
writing of the reasons why HUD has not accepted the AFH and the actions
that the program participant may take to resolve the nonacceptance.
(2) Meaning of ``acceptance''. HUD's acceptance of an AFH means only
that, for purposes of administering HUD program funding, HUD has
determined that the program participant has provided an AFH that meets
the required elements, as set forth in Sec. 5.154(d). Acceptance does
not mean that the program participant has complied with its obligation
to affirmatively further fair housing under the Fair Housing Act; has
complied with other provisions of the Fair Housing Act; or has complied
with other civil rights laws and regulations.
(b) Nonacceptance of an AFH. (1) HUD will not accept an AFH if HUD
finds that the AFH or a portion of the AFH is inconsistent with fair
housing or civil rights requirements or is substantially incomplete. In
connection with a regional or joint AFH, HUD's determination to not
accept the AFH with respect to one program participant does not
necessarily affect the acceptance of the AFH with respect to another
program participant.
(i) The following are examples of an AFH that is inconsistent with
fair housing and civil rights requirements:
(A) HUD determines that the analysis of fair housing issues, fair
housing contributing factors, goals, or priorities contained in the AFH
would result in policies or practices that would operate to discriminate
in violation of the Fair Housing Act or other civil rights laws;
(B) The AFH does not identify policies or practices as fair housing
contributing factors, even though they result in the exclusion of a
protected class from areas of opportunity.
(ii) The following are examples of an AFH that is substantially
incomplete:
(A) The AFH was developed without the required community
participation or the required consultation;
(B) The AFH fails to satisfy a required element in Sec. Sec. 5.150
through 5.180. Failure to satisfy a required element includes an
assessment in which priorities or goals are materially inconsistent with
the data or other evidence available to the program participant or
[[Page 59]]
in which priorities or goals are not designed to overcome the effects of
contributing factors and related fair housing issues.
(2) HUD will provide written notification to the program
participant, including each program participant involved in a
collaborative AFH (joint or regional AFH), of HUD's nonacceptance of the
AFH and the written notification will specify the reasons why the AFH
was not accepted and will provide guidance on how the AFH should be
revised in order to be accepted.
(c) Revisions and resubmission. HUD will provide a program
participant, including each program participant involved in a
collaborative AFH, with a time period to revise and resubmit the AFH,
which shall be no less than 45 calendar days after the date on which HUD
provides written notification that it does not accept the AFH. The
revised AFH will be deemed accepted after 30 calendar days of the date
by which HUD receives the revised AFH, unless on or before that date HUD
has provided notification that HUD does not accept the revised AFH.
(d) Accepted AFH as requirement for consolidated plan and PHA Plan
approval. If a program participant does not have an accepted AFH, HUD
will disapprove a consolidated plan (see 24 CFR 91.500) or a PHA Plan
(see 24 CFR 903.23) except where delayed submission is otherwise
permitted under Sec. 5.156 or Sec. 5.160.
(1) If a consolidated plan program participant fails to submit an
AFH as required by Sec. 5.160, HUD may establish an alternative date
for the jurisdiction to submit its consolidated plan, but in no event
past the August 16 deadline provided in 24 CFR 91.15. Failure to submit
a consolidated plan by August 16 of the Federal fiscal year for which
funds are appropriated will automatically result in the loss of the CDBG
funds to which the jurisdiction would otherwise be entitled.
(2) If a PHA fails to submit the AFH in accordance with Sec. 5.160,
the PHA must have an accepted AFH no later than 75 calendar days before
the commencement of the PHA's fiscal year to avoid any potential impacts
on funding.
Sec. 5.164 Revising an accepted AFH.
(a) General--(1) Minimum criteria for revising the AFH. An AFH
previously accepted by HUD must be revised and submitted to HUD for
review under the following circumstances:
(i) A material change occurs. A material change is a change in
circumstances in the jurisdiction of a program participant that affects
the information on which the AFH is based to the extent that the
analysis, the fair housing contributing factors, or the priorities and
goals of the AFH no longer reflect actual circumstances. Examples
include Presidentially declared disasters, under title IV of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
et seq.), in the program participant's area that are of such a nature as
to significantly impact the steps a program participant may need to take
to affirmatively further fair housing; significant demographic changes;
new significant contributing factors in the participant's jurisdiction;
and civil rights findings, determinations, settlements (including
Voluntary Compliance Agreements), or court orders; or
(ii) Upon HUD's written notification specifying a material change
that requires the revision.
(2) Criteria for revising the AFH. The criteria that will be used in
determining when revisions to the AFH are appropriate must be specified
in the citizen participation plan adopted under the consolidated plan
pursuant to 24 CFR part 91, and the public participation procedures and
significant amendment process required under 24 CFR part 903. Such
criteria must include, at a minimum, the circumstances described in
paragraph (a)(1) of this section.
(3) Revised AFH. A revision pursuant to paragraph (a)(1) of this
section consists of preparing and submitting amended analyses,
assessments, priorities, and goals that take into account the material
change, including any new fair housing issues and contributing factors
that may arise as a result of the material change. A revision may not
necessarily require the submission of an entirely new AFH. The revision
need only focus on the material change and appropriate adjustments to
the
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analyses, assessments, priorities, or goals.
(b) Timeframe for revision. (1) Where a revision is required under
paragraph (a)(1)(i) of this section, such revision shall be submitted
within 12 months of the onset of the material change, or at such later
date as HUD may provide. Where the material change is the result of a
Presidentially declared disaster, such time shall be automatically
extended to the date that is 2 years after the date upon which the
disaster declaration is made, and HUD may extend such deadline, upon
request, for good cause shown.
(2)(i) Where a revision is required under paragraph (a)(1)(ii) of
this section, HUD will specify a date by which the program participant
must submit the revision of the AFH to HUD, taking into account the
material change, the program participant's capacity, and the need for a
valid AFH to guide planning activities. HUD may extend the due date upon
written request by the program participant that describes the reasons
the program participant is unable to make the deadline.
(ii) On or before 30 calendar days following the date of HUD's
written notification under paragraph (a)(1)(ii) of this section, the
program participant may advise HUD in writing of its belief that a
revision to the AFH is not required. The program participant must state
with specificity the reasons for its belief that a revision is not
required. HUD will respond on or before 30 calendar days following the
date of the receipt of the program participant's correspondence and will
advise the program participant in writing whether HUD agrees or
disagrees with the program participant. If HUD disagrees, the program
participant must proceed with the revision. HUD may establish a new due
date that is later than the date specified in its original notification.
(c) Community participation. Revisions to an AFH, as described in
this section, are subject to community participation. The jurisdiction
must follow the notice and comment process applicable to consolidated
plan substantial amendments under the jurisdiction's citizen
participation plan adopted pursuant to 24 CFR part 91 (see 24 CFR
91.105, 91.115, and 91.401). A consortium must follow the participation
process applicable to consolidated plan substantial amendments under the
consortium's citizen participation plan adopted pursuant to 24 CFR
91.401. Insular areas submitting an abbreviated consolidated plan shall
follow the citizen participation requirements of 24 CFR 570.441. The PHA
must follow the notice and comment process applicable to significant
amendments or modifications pursuant to 24 CFR 903.13, 903.15, 903.17,
and 903.21.
(d) Submission to HUD of the revised AFH. Upon completion, any
revision to the AFH must be made public and submitted to HUD at the time
of the revision.
(e) PHAs. Upon any revision to the AFH pursuant to Sec. Sec. 5.150
through 5.180, PHAs must revise their PHA Plan within 12 months,
consistent with the AFH revision, and pursuant to 24 CFR 903.15(c).
Sec. 5.166 AFFH certification.
(a) Certifications. Program participants must certify that they will
affirmatively further fair housing when required by statutes and
regulations governing HUD programs. Such certifications are made in
accordance with applicable program regulations. Consolidated plan
program participants are subject to the certification requirements in 24
CFR part 91, and PHA Plan program participants are subject to the
certification requirements in 24 CFR part 903.
(b) Procedure for challenging the validity of an AFFH certification.
(1) For consolidated plan program participants, HUD's challenge to the
validity of an AFFH certification will be based on procedures and
standards specified in 24 CFR part 91.
(2) For PHA Plan program participants, HUD's challenge to the
validity of an AFFH certification will be based on procedures and
standards specified in 24 CFR part 903.
Sec. 5.168 Recordkeeping.
(a) General. Each program participant must establish and maintain
sufficient records to enable HUD to determine whether the program
participant has met the requirements of this subpart.
[[Page 61]]
A PHA not preparing its own AFH in accordance with 24 CFR 903.15(a)(3)
must maintain a copy of the applicable AFH and records reflecting
actions to affirmatively further fair housing as described in 24 CFR
903.7(o). All program participants shall make these records available
for HUD inspection. At a minimum, the following records are needed for
each consolidated plan program participant and each PHA that prepares
its own AFH:
(1) Information and records relating to the program participant's
AFH and any significant revisions to the AFH, including, but not limited
to, statistical data, studies, and other diagnostic tools used by the
jurisdiction; and any policies, procedures, or other documents relating
to the analysis or preparation of the AFH;
(2) Records demonstrating compliance with the consultation and
community participation requirements of Sec. Sec. 5.150 through 5.180
and applicable program regulations, including the names of organizations
involved in the development of the AFH, summaries or transcripts of
public meetings or hearings, written public comments, public notices and
other correspondence, distribution lists, surveys, or interviews (as
applicable);
(3) Records demonstrating the actions the program participant has
taken to affirmatively further fair housing, including activities
carried out in furtherance of the assessment; the program participant's
AFFH goals and strategies set forth in its AFH, consolidated plan, or
PHA Plan, and any plan incorporated therein; and the actions the program
participant has carried out to promote or support the goals identified
in accordance with Sec. 5.154 during the preceding 5 years;
(4) Where courts or an agency of the United States Government or of
a State government has found that the program participant has violated
any applicable nondiscrimination and equal opportunity requirements set
forth in Sec. 5.105(a) or any applicable civil rights-related program
requirement, documentation related to the underlying judicial or
administrative finding and affirmative measures that the program
participant has taken in response.
(5) Documentation relating to the program participant's efforts to
ensure that housing and community development activities (including
those assisted under programs administered by HUD) are in compliance
with applicable nondiscrimination and equal opportunity requirements set
forth in Sec. 5.105(a) and applicable civil rights related program
requirements;
(6) Records demonstrating that consortium members, units of general
local government receiving allocations from a State, or units of general
local government participating in an urban county have conducted their
own or contributed to the jurisdiction's assessment (as applicable) and
documents demonstrating their actions to affirmatively further fair
housing; and
(7) Any other evidence relied upon by the program participant to
support its affirmatively furthering fair housing certification.
(b) Retention period. All records must be retained for such period
as may be specified in the applicable program regulations.
Sec. Sec. 5.167-5.180 [Reserved]
Subpart B_Disclosure and Verification of Social Security Numbers and
Employer Identification Numbers; Procedures for Obtaining Income
Information
Authority: 42 U.S.C. 3535(d), 3543, 3544, and 11901 et seq.
Source: 61 FR 11113, Mar. 18, 1996, unless otherwise noted.
Sec. 5.210 Purpose, applicability, and Federal preemption.
(a) Purpose. This subpart B requires applicants for and participants
in covered HUD programs to disclose, and submit documentation to verify,
their Social Security Numbers (SSNs). This subpart B also enables HUD
and PHAs to obtain income information about applicants and participants
in the covered programs through computer matches with State Wage
Information Collection Agencies (SWICAs) and Federal agencies, in order
to verify an applicant's or participant's eligibility for
[[Page 62]]
or level of assistance. The purpose of this subpart B is to enable HUD
to decrease the incidence of fraud, waste, and abuse in the covered
programs.
(b) Applicability. (1) This subpart B applies to mortgage and loan
insurance and coinsurance and housing assistance programs contained in
chapter II, subchapter B, and chapters VIII and IX of this title.
(2) The information covered by consent forms described in this
subpart involves income information from SWICAs, and wages, net earnings
from self-employment, payments of retirement income, and unearned income
as referenced at 26 U.S.C. 6103. In addition, consent forms may
authorize the collection of other information from applicants and
participants to determine eligibility or level of benefits.
(c) Federal preemption. This subpart B preempts any State law,
including restrictions and penalties, that governs the collection and
use of income information to the extent State law is inconsistent with
this subpart.
[61 FR 11113, Mar. 18, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.212 Compliance with the Privacy Act and other requirements.
(a) Compliance with the Privacy Act. The collection, maintenance,
use, and dissemination of SSNs, EINs, any information derived from SSNs
and Employer Identification Numbers (EINs), and income information under
this subpart shall 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.
(b) Privacy Act notice. All assistance applicants shall be provided
with a Privacy Act notice at the time of application. All participants
shall be provided with a Privacy Act notice at each annual income
recertification.
Sec. 5.214 Definitions.
In addition to the definitions in Sec. 5.100, the following
definitions apply to this subpart B:
Assistance applicant. Except as excluded pursuant to 42 U.S.C.
3543(b) and 3544(a)(2), this term means the following:
(1) For any program under 24 CFR parts 215, 221, 236, 290, or 891,
or any program under Section 8 of the 1937 Act: A family or individual
that seeks rental assistance under the program.
(2) For the public housing program: A family or individual that
seeks admission to the program.
(3) For any program under 24 CFR part 235: A homeowner or
cooperative member seeking homeownership assistance (including where the
individual seeks to assume an existing mortgage).
Computer match means the automated comparison of data bases
containing records about individuals.
Computer matching agreement means the agreement that describes the
responsibilities and obligations of the parties participating in a
computer match.
Consent form means any consent form approved by HUD to be signed by
assistance applicants and participants for the purpose of obtaining
income information from employers and SWICAs; return information from
the Social Security Administration (including wages, net earnings from
self-employment, and payments of retirement income), as referenced at 26
U.S.C. 6103(l)(7)(A); and return information for unearned income from
the Internal Revenue Service, as referenced at 26 U.S.C. 6103(l)(7)(B).
The consent forms expire after a certain time and may authorize the
collection of other information from assistance applicants or
participants to determine eligibility or level of benefits as provided
in Sec. Sec. 813.109, 913.109, and 950.315 of this title.
Employer Identification Number (EIN) means the nine-digit taxpayer
identifying number that is assigned to an individual, trust, estate,
partnership, association, company, or corporation pursuant to sections
6011(b), or corresponding provisions of prior law, or 6109 of the
Internal Revenue Code.
Entity applicant. (1) Except as excluded pursuant to 42 U.S.C.
3543(b), 3544(a)(2), and paragraph (2) of this definition, this term
means a partnership, corporation, or any other association or entity,
other than an individual owner applicant, that seeks to participate as a
private owner in any of the following:
[[Page 63]]
(i) The project-based assistance programs under Section 8 of the
1937 Act;
(ii) The programs in 24 CFR parts 215, 221, or 236; or
(iii) The other mortgage and loan insurance programs in 24 CFR parts
201 through 267, except that the term ``entity applicant'' does not
include a mortgagee or lender.
(2) The term does not include a public entity, such as a PHA, IHA,
or State Housing Finance Agency.
Federal agency means a department of the executive branch of the
Federal Government.
Income information means information relating to an individual's
income, including:
(1) All employment income information known to current or previous
employers or other income sources that HUD or the processing entity
determines is necessary for purposes of determining an assistance
applicant's or participant's eligibility for, or level of assistance in,
a covered program;
(2) All information about wages, as defined in the State's
unemployment compensation law, including any Social Security Number;
name of the employee; quarterly wages of the employee; and the name,
full address, telephone number, and, when known, Employer Identification
Number of an employer reporting wages under a State unemployment
compensation law;
(3) With respect to unemployment compensation:
(i) Whether an individual is receiving, has received, or has applied
for unemployment compensation;
(ii) The amount of unemployment compensation the individual is
receiving or is entitled to receive; and
(iii) The period with respect to which the individual actually
received such compensation;
(4) Unearned IRS income and self-employment, wages and retirement
income as described in the Internal Revenue Code, 26 U.S.C. 6103(l)(7);
and
(5) Wage, social security (Title II), and supplemental security
income (Title XVI) data obtained from the Social Security
Administration.
Individual owner applicant. Except as excluded pursuant to 42 U.S.C.
3543(b), 3544(a)(2), or paragraph (2) of this definition, this term
means:
(1) An individual who seeks to participate as a private owner in any
of:
(i) The project-based assistance programs under Section 8 of the
1937 Act; or
(ii) The programs in 24 CFR parts 215, 221, 235 (without
homeownership assistance), or 236, including where the individual seeks
to assume an existing mortgage; or
(2) An individual who:
(i) Either: (A) Applies for a mortgage or loan insured or coinsured
under any of the programs referred to in paragraph (1)(iii) of the
definition of ``entity applicant'' in this section; or
(B) Seeks to assume an existing mortgage or loan; and
(ii) Intends to hold the mortgaged property in his or her individual
right.
IRS means the Internal Revenue Service.
Owner means the person or entity (or employee of an owner) that
leases an assisted dwelling unit to an eligible family and includes,
when applicable, a mortgagee.
Participant. Except as excluded pursuant to 42 U.S.C. 3543(b) and
3544(a)(2), this term has the following meaning:
(1) For any program under 24 CFR part 891, or Section 8 of the 1937
Act: A family receiving rental assistance under the program;
(2) For the public housing program: A family or individual that is
assisted under the program;
(3) For 24 CFR parts 215, 221, 236, and 290: A tenant or qualified
tenant under any of the programs; and
(4) For 24 CFR part 235: A homeowner or a cooperative member
receiving homeownership assistance.
Processing entity means the person or entity that, under any of the
programs covered under this subpart B, is responsible for making
eligibility and related determinations and an income reexamination. (In
the Section 8 and public housing programs, the ``processing entity'' is
the ``responsible entity'' as defined in Sec. 5.100.)
Social Security Number (SSN) means the nine-digit number that is
assigned to a person by the Social Security Administration and that
identifies the
[[Page 64]]
record of the person's earnings reported to the Social Security
Administration. The term does not include a number with a letter as a
suffix that is used to identify an auxiliary beneficiary.
SSA means the Social Security Administration.
State Wage Information Collection Agency (SWICA) means the State
agency, including any Indian tribal agency, receiving quarterly wage
reports from employers in the State, or an alternative system that has
been determined by the Secretary of Labor to be as effective and timely
in providing employment-related income and eligibility information.
[61 FR 11113, Mar. 18, 1996, as amended at 63 FR 23853, Apr. 30, 1998;
65 FR 16715, Mar. 29, 2000]
Disclosure and Verification of Social Security Numbers and Employer
Identification Numbers for Applicants and Participants in Certain HUD
Programs
Sec. 5.216 Disclosure and verification of Social Security and
Employer Identification Numbers.
(a) General. The requirements of this section apply to applicants
and participants as described in this section, except that this section
is inapplicable to individuals who do not contend eligible immigration
status under subpart E of this part (see Sec. 5.508).
(b) Disclosure required of assistance applicants. Each assistance
applicant must submit the following information to the processing entity
when the assistance applicant's eligibility under the program involved
is being determined.
(1) The complete and accurate SSN assigned to the assistance
applicant and to each member of the assistance applicant's household;
and
(2) The documentation referred to in paragraph (g)(1) of this
section to verify each such SSN.
(c) Disclosure required of individual owner applicants. Each
individual owner applicant must submit the following information to the
processing entity when the individual owner applicant's eligibility
under the program involved is being determined:
(1) The complete and accurate SSN assigned to the individual owner
applicant and to each member of the individual owner applicant's
household who will be obligated to pay the debt evidenced by the
mortgage or loan documents; and
(2) The documentation referred to in paragraph (g)(1) of this
section to verify each such SSN.
(d) Disclosure required of certain officials of entity applicants.
Each officer, director, principal stockholder, or other official of an
entity applicant must submit the following information to the processing
entity when the entity applicant's eligibility under the program
involved is being determined:
(1) The complete and accurate SSN assigned to each such individual;
and
(2) The documentation referred to in paragraph (g)(1) of this
section to verify each SSN.
(e) Disclosure required of participants--(1) Initial disclosure. (i)
Each participant, except those age 62 or older as of January 31, 2010,
whose initial determination of eligibility was begun before January 31,
2010, must submit the information described in paragraph (e)(1)(ii) of
this section, if the participant has:
(A) Not previously disclosed a SSN;
(B) Previously disclosed a SSN that HUD or the SSA determined was
invalid; or
(C) Been issued a new SSN.
(ii) Each participant subject to the disclosure requirements under
paragraph (e)(1)(i) of this section must submit the following
information to the processing entity at the next interim or regularly
scheduled reexamination or recertification of family composition or
income, or other reexamination or recertification for the program
involved:
(A) The complete and accurate SSN assigned to the participant and to
each member of the participant's household; and
(B) The documentation referred to in paragraph (g)(1) of this
section to verify each such SSN.
(2) Subsequent disclosure. Once a participant has disclosed and the
processing entity has verified each SSN, the following rules apply:
[[Page 65]]
(i) Addition of new household member who is at least 6 years of age
or under the age of 6 and has an assigned SSN. When the participant
requests to add a new household member who is at least 6 years of age,
or is under the age of 6 and has an assigned SSN, the participant must
provide the following to the processing entity at the time of the
request, or at the time of processing the interim reexamination or
recertification of family composition that includes the new member(s):
(A) The complete and accurate SSN assigned to each new member; and
(B) The documentation referred to in paragraph (g)(1) of this
section to verify the SSN for each new member.
(ii) Addition of new household member who is under the age of 6 and
has no assigned SSN. (A) When a participant requests to add a new
household member who is under the age of 6 and has not been assigned a
SSN, the participant shall be required to provide the complete and
accurate SSN assigned to each new child and the documentation referred
to in paragraph (g)(1) of this section to verify the SSN for each new
child within 90 calendar days of the child being added to the household.
(B) The processing entity shall grant an extension of one additional
90-day period if the processing entity, in its discretion, determines
that the participant's failure to comply was due to circumstances that
could not have reasonably been foreseen and were outside the control of
the participant. During the period that the processing entity is
awaiting documentation of a SSN, the processing entity shall include the
child as part of the assisted household and the child shall be entitled
to all the benefits of being a household member. If, upon expiration of
the provided time period, the participant fails to produce a SSN, the
processing entity shall follow the provisions of Sec. 5.218.
(iii) Assignment of new SSN. If the participant or any member of the
participant's household has been assigned a new SSN, the participant
must submit the following to the processing entity at either the time of
receipt of the new SSN; at the next interim or regularly scheduled
reexamination or recertification of family composition or income, or
other reexamination or recertification; or at such earlier time
specified by the processing entity:
(A) The complete and accurate SSN assigned to the participant or
household member involved; and
(B) The documentation referred to in paragraph (g)(1) of this
section to verify the SSN of each individual.
(f) Disclosure required of entity applicants. Each entity applicant
must submit the following information to the processing entity when the
entity applicant's eligibility under the program involved is being
determined:
(1) Any complete and accurate EIN assigned to the entity applicant;
and
(2) The documentation referred to in paragraph (g)(2) of this
section to verify the EIN.
(g) Required documentation--(1) SSN. The documentation necessary to
verify the SSN of an individual who is required to disclose his or her
SSN under paragraphs (a) through (e) of this section is:
(i) A valid SSN card issued by the SSA;
(ii) An original document issued by a federal or state government
agency, which contains the name of the individual and the SSN of the
individual, along with other identifying information of the individual;
or
(iii) Such other evidence of the SSN as HUD may prescribe in
administrative instructions.
(2) EIN. The documentation necessary to verify an EIN of an entity
applicant that is required to disclose its EIN under paragraph (f) of
this section is the official, written communication from the Internal
Revenue Service (IRS) assigning the EIN to the entity applicant, or such
other evidence of the EIN as HUD may prescribe in administrative
instructions.
(h) Effect on assistance applicants. (1) Except as provided in
paragraphs (h)(2) and (3) of this section, if the processing entity
determines that the assistance applicant is otherwise eligible to
participate in a program, the assistance applicant may retain its place
on the waiting list for the program but cannot become a participant
until it can provide the documentation referred to in paragraph (g)(1)
of this section to verify the SSN of each member of the household.
[[Page 66]]
(2) For applicants to the Section 8 Moderate Rehabilitation Single
Room Occupancy (SRO) Program for Homeless Individuals under 24 CFR part
882, subpart H, the documentation required in paragraph (g)(1) of this
section must be provided to the processing entity within 90 calendar
days from the date of admission into the program. The processing entity
shall grant an extension of one additional 90-day period if the
processing entity, in its discretion, determines that the applicant's
failure to comply was due to circumstances that could not have
reasonably been foreseen and were outside the control of the applicant.
If, upon expiration of the provided time period, the individual fails to
produce a SSN, the processing entity shall follow the provisions of
Sec. 5.218.
(3) If a child under the age of 6 years was added to the assistance
applicant household within the 6-month period prior to the household's
date of admission (or, for the HCV program, the date of voucher
issuance), the assistance applicant may become a participant, so long as
the documentation required in paragraph (g)(1) of this section is
provided to the processing entity within 90 calendar days from the date
of admission into the program (or, for the HCV program, the effective
date of the Housing Assistance Payment contract). The processing entity
must grant an extension of one additional 90-day period if the
processing entity determines that, in its discretion, the assistance
applicant's failure to comply was due to circumstances that could not
reasonably have been foreseen and were outside the control of the
assistance applicant. If the applicant family fails to produce the
documentation required in paragraph (g)(1) of this section within the
required time period, the processing entity must follow the provisions
of Sec. 5.218.
(i) Rejection of documentation. The processing entity must not
reject documentation referred to in paragraph (g) of this section,
except as HUD may otherwise prescribe through publicly issued notice.
[74 FR 68932, Dec. 29, 2009, as amended at 81 FR 12369, Mar. 8, 2016]
Sec. 5.218 Penalties for failing to disclose and verify Social
Security and Employer Identification Numbers.
(a) Denial of eligibility of assistance applicants and individual
owner applicants. The processing entity must deny the eligibility of an
assistance applicant or individual owner applicant in accordance with
the provisions governing the program involved, if the assistance or
individual owner applicant does not meet the applicable SSN disclosure,
documentation, and verification requirements as specified in Sec.
5.216.
(b) Denial of eligibility of 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 entity applicant does not meet the EIN disclosure,
documentation, and verification requirements specified in Sec. 5.216;
or
(2) Any of the officials of the entity applicant referred to in
Sec. 5.216(d) does not meet the applicable SSN disclosure, and
documentation and verification requirements specified in Sec. 5.216.
(c) Termination of assistance or termination of tenancy of
participants. (1) The processing entity must terminate the assistance or
terminate the tenancy, or both, of a participant and the participant's
household, in accordance with the provisions governing the program
involved, if the participant does not meet the applicable SSN
disclosure, documentation, and verification requirements specified in
Sec. 5.216.
(2) The processing entity may defer termination and provide the
participant with an additional 90 calendar days to disclose a SSN, but
only if the processing entity, in its discretion, determines that:
(i) The failure to meet these requirements was due to circumstances
that could not have reasonably been foreseen and were outside the
control of the participant; and
(ii) There is a reasonable likelihood that the participant will be
able to disclose a SSN by the deadline.
(3) Failure of the participant to disclose a SSN by the deadline
specified in paragraph (c)(2) of this section will result in termination
of the assistance or
[[Page 67]]
tenancy, or both, of the participant and the participant's household.
(d) Cross reference. Individuals should consult the regulations and
administrative instructions for the programs covered under this subpart
B for further information on the use of SSNs and EINs in determinations
regarding eligibility.
[61 FR 11113, Mar. 18, 1996, as amended at 74 FR 4840, Jan. 27, 2009; 74
FR 68933, Dec. 29, 2009]
Procedures for Obtaining Income Information About Applicants and
Participants
Sec. 5.230 Consent by assistance applicants and participants.
(a) Required consent by assistance applicants and participants. Each
member of the family of an assistance applicant or participant who is at
least 18 years of age, and each family head and spouse regardless of
age, shall sign one or more consent forms.
(b) Consent authorization--(1) To whom and when. The assistance
applicant shall submit the signed consent forms to the processing entity
when eligibility under a covered program is being determined. A
participant shall sign and submit consent forms at the next regularly
scheduled income reexamination. Assistance applicants and participants
shall be responsible for the signing and submitting of consent forms by
each applicable family member.
(2) Subsequent consent forms--special cases. Participants are
required to sign and submit consent forms at the next interim or
regularly scheduled income reexamination under the following
circumstances:
(i) When any person 18 years or older becomes a member of the
family;
(ii) When a member of the family turns 18 years of age; and
(iii) As required by HUD or the PHA in administrative instructions.
(c) Consent form--contents. The consent form required by this
section shall contain, at a minimum, the following:
(1) A provision authorizing HUD and PHAs to obtain from SWICAs any
information or materials necessary to complete or verify the application
for participation and to maintain continued assistance under a covered
program; and
(2) A provision authorizing HUD, PHAs, or the owner responsible for
determining eligibility for or the level of assistance to verify with
previous or current employers income information pertinent to the
assistance applicant's or participant's eligibility for or level of
assistance under a covered program;
(3) A provision authorizing HUD to request income return information
from the IRS and the SSA for the sole purpose of verifying income
information pertinent to the assistance applicant's or participant's
eligibility or level of benefits; and
(4) A statement that the authorization to release the information
requested by the consent form expires 15 months after the date the
consent form is signed.
Sec. 5.232 Penalties for failing to sign consent forms.
(a) Denial or termination of benefits. In accordance with the
provisions governing the program involved, if the assistance applicant
or participant, or any member of the assistance applicant's or
participant's family, does not sign and submit the consent form as
required in Sec. 5.230, then:
(1) The processing entity shall deny assistance to and admission of
an assistance applicant;
(2) Assistance to, and the tenancy of, a participant may be
terminated.
(b) Cross references. Individuals should consult the regulations and
administrative instructions for the programs covered under this subpart
B for further information on the use of income information in
determinations regarding eligibility.
Sec. 5.233 Mandated use of HUD's Enterprise Income Verification
(EIV) System.
(a) Programs subject to this section and requirements. (1) The
requirements of this section apply to entities administering assistance
under the:
(i) Public Housing program under 24 CFR part 960;
(ii) Section 8 Housing Choice Voucher (HCV) program under 24 CFR
part 982;
(iii) Moderate Rehabilitation program under 24 CFR part 882;
[[Page 68]]
(iv) Project-based Voucher program under 24 CFR part 983;
(v) Project-based Section 8 programs under 24 CFR parts 880, 881,
883, 884, 886, and 891;
(vi) Section 202 of the Housing Act of 1959 (12 U.S.C. 1701q);
(vii) Section 811 of the Cranston-Gonzalez National Affordable
Housing Act (42 U.S.C. 8013);
(viii) Sections 221(d)(3) and 236 of the National Housing Act (12
U.S.C. 1715l(d)(3) and 1715z-1); and
(ix) Rent Supplement program under section 101 of the Housing and
Urban Development Act of 1965 (12 U.S.C. 1701s).
(2) Processing entities must use HUD's EIV system in its entirety:
(i) As a third party source to verify tenant employment and income
information during mandatory reexaminations or recertifications of
family composition and income, in accordance with Sec. 5.236, and
administrative guidance issued by HUD; and
(ii) To reduce administrative and subsidy payment errors in
accordance with HUD administrative guidance.
(b) Penalties for noncompliance. Failure to use the EIV system in
its entirety may result in the imposition of sanctions and/or the
assessment of disallowed costs associated with any resulting incorrect
subsidy or tenant rent calculations, or both.
[74 FR 68934, Dec. 29, 2009]
Sec. 5.234 Requests for information from SWICAs and Federal agencies;
restrictions on use.
(a) Information available from SWICAs and Federal agencies--to whom
and what. Income information will generally be obtained through computer
matching agreements between HUD and a SWICA or Federal agency, or
between a PHA and a SWICA, as described in paragraph (c) of this
section. Certification that the applicable assistance applicants and
participants have signed appropriate consent forms and have received the
necessary Privacy Act notice is required, as follows:
(1) When HUD requests the computer match, the processing entity
shall certify to HUD; and
(2) When the PHA requests the computer match, the PHA shall certify
to the SWICA.
(b) Restrictions on use of information. The restrictions of 42
U.S.C. 3544(c)(2)(A) apply to the use by HUD or a PHA of income
information obtained from a SWICA. The restrictions of 42 U.S.C.
3544(c)(2)(A) and of 26 U.S.C. 6103(l)(7) apply to the use by HUD or a
PHA of income information obtained from the IRS or SSA.
(c) Computer matching agreements. Computer matching agreements shall
specify the purpose and the legal authority for the match, and shall
include a description of the records to be matched, a statement
regarding disposition of information generated through the match, a
description of the administrative and technical safeguards to be used in
protecting the information obtained through the match, a description of
the use of records, the restrictions on duplication and redisclosure, a
certification, and the amount that will be charged for processing a
request.
(Approved by the Office of Management and Budget under control number
2508-0008)
Sec. 5.236 Procedures for termination, denial, suspension, or
reduction of assistance based on information obtained from a
SWICA or Federal agency.
(a) Termination, denial, suspension, or reduction of assistance. The
provisions of 42 U.S.C. 3544(c)(2)(B) and (C) shall govern the
termination, denial, suspension, or reduction of benefits for an
assistance applicant or participant based on income information obtained
from a SWICA or a Federal agency. Procedures necessary to comply with
these provisions are provided in paragraph (b) of this section.
(b) Procedures for independent verification. (1) Any determination
or redetermination of family income verified in accordance with this
paragraph must be carried out in accordance with the requirements and
procedures applicable to the individual covered program. Independent
verification of information obtained from a SWICA or a Federal agency
may be:
(i) By HUD;
[[Page 69]]
(ii) In the case of the public housing program, by a PHA; or
(iii) In the case of any Section 8 program, by a PHA acting as
contract administrator under an ACC.
(2) Upon receiving income information from a SWICA or a Federal
agency, HUD or, when applicable, the PHA shall compare the information
with the information about a family's income that was:
(i) Provided by the assistance applicant or participant to the PHA;
or
(ii) Obtained by the owner (or mortgagee, as applicable) from the
assistance applicant or participant or from his or her employer.
(3) When the income information reveals an employer or other income
source that was not disclosed by the assistance applicant or
participant, or when the income information differs substantially from
the information received from the assistance applicant or participant or
from his or her employer:
(i) HUD or, as applicable or directed by HUD, the PHA shall request
the undisclosed employer or other income source to furnish any
information necessary to establish an assistance applicant's or
participant's eligibility for or level of assistance in a covered
program. This information shall be furnished in writing, as directed to:
(A) HUD, with respect to programs under parts 221, 235, 236, or 290
of this title;
(B) The responsible entity (as defined in Sec. 5.100) in the case
of the public housing program or any Section 8 program.
(C) The owner or mortgagee, as applicable, with respect to the rent
supplement, Section 221(d)(3) BMIR, Section 235 homeownership
assistance, or Section 236 programs.
(ii) HUD or the PHA may verify the income information directly with
an assistance applicant or participant. Such verification procedures
shall not include any disclosure of income information prohibited under
paragraph (b)(6) of this section.
(4) HUD and the PHA shall not be required to pursue these
verification procedures when the sums of money at issue are too small to
raise an inference of fraud or justify the expense of independent
verification and the procedures related to termination, denial,
suspension, or reduction of assistance.
(5) Based on the income information received from a SWICA or Federal
agency, HUD or the PHA, as appropriate, may inform an owner (or
mortgagee) that an assistance applicant's or participant's eligibility
for or level of assistance is uncertain and needs to be verified. The
owner (or mortgagee) shall then confirm the assistance applicant's or
participant's income information by checking the accuracy of the
information with the employer or other income source, or directly with
the family.
(6) Nondisclosure of Income information. Neither HUD nor the PHA may
disclose income information obtained from a SWICA directly to an owner
(unless a PHA is the owner). Disclosure of income information obtained
from the SSA or IRS is restricted under 26 U.S.C. Sec. 6103(l)(7) and
42 U.S.C. 3544.
(c) Opportunity to contest. HUD, the PHA, or the owner (or
mortgagee, as applicable) shall promptly notify any assistance applicant
or participant in writing of any adverse findings made on the basis of
the information verified in accordance with paragraph (b) of this
section. The assistance applicant or participant may contest the
findings in the same manner as applies to other information and findings
relating to eligibility factors under the applicable program.
Termination, denial, suspension, or reduction of assistance shall be
carried out in accordance with requirements and procedures applicable to
the individual covered program, and shall not occur until the expiration
of any notice period provided by the statute or regulations governing
the program.
[61 FR 11113, Mar. 18, 1996, as amended at 65 FR 16715, Mar. 29, 2000;
74 FR 68934, Dec. 29, 2009]
Sec. 5.238 Criminal and civil penalties.
Persons who violate the provisions of 42 U.S.C. 3544 or 26 U.S.C.
6103(l)(7) with respect to the use and disclosure of income information
may be subject to civil or criminal penalties under 42 U.S.C.
3544(c)(3), 26 U.S.C. 7213(a), or 18 U.S.C. 1905.
[[Page 70]]
Sec. 5.240 Family disclosure of income information to the responsible
entity and verification.
(a) This section applies to families that reside in dwelling units
with assistance under the public housing program, the Section 8 tenant-
based assistance programs, or for which project-based assistance is
provided under the Section 8, Section 202, or Section 811 program.
(b) The family must promptly furnish to the responsible entity any
letter or other notice by HUD to a member of the family that provides
information concerning the amount or verification of family income.
(c) The responsible entity must verify the accuracy of the income
information received from the family, and change the amount of the total
tenant payment, tenant rent or Section 8 housing assistance payment, or
terminate assistance, as appropriate, based on such information.
[65 FR 16715, Mar. 29, 2000]
Subpart C_Pet Ownership for the Elderly or Persons With Disabilities
Authority: 42 U.S.C. 1701r-1 and 3535(d).
General Requirements
Sec. 5.300 Purpose.
(a) This subpart implements section 227 of the Housing and Urban-
Rural Recovery Act of 1983 (12 U.S.C. 1701r-1) as it pertains to
projects for the elderly or persons with disabilities under:
(1) The housing programs administered by the Assistant Secretary for
Housing-Federal Housing Commissioner;
(2) Projects assisted under the programs contained in chapter VIII
of this title 24; and
(3) The public housing program.
(b) [Reserved]
[61 FR 5202, Feb. 9, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.303 Exclusion for animals that assist, support, or provide
service to persons with disabilities.
(a) This subpart C does not apply to animals that are used to
assist, support, or provide service to persons with disabilities.
Project owners and PHAs may not apply or enforce any policies
established under this subpart against animals that are necessary as a
reasonable accommodation to assist, support, or provide service to
persons with disabilities. This exclusion applies to animals that reside
in projects for the elderly or persons with disabilities, as well as to
animals that visit these projects.
(b) Nothing in this subpart C:
(1) Limits or impairs the rights of persons with disabilities;
(2) Authorizes project owners or PHAs to limit or impair the rights
of persons with disabilities; or
(3) Affects any authority that project owners or PHAs may have to
regulate animals that assist, support, or provide service to persons
with disabilities, under federal, state, or local law.
[73 FR 63838, Oct. 27, 2008]
Sec. 5.306 Definitions.
Common household pet means:
(1) For purposes of Housing programs: A domesticated animal, such as
a dog, cat, bird, rodent (including a rabbit), fish, or turtle, that is
traditionally kept in the home for pleasure rather than for commercial
purposes. Common household pet does not include reptiles (except
turtles). If this definition conflicts with any applicable State or
local law or regulation defining the pets that may be owned or kept in
dwelling accommodations, the State or local law or regulation shall
apply. This definition shall not include animals that are used to assist
persons with disabilities.
(2) For purposes of Public Housing programs: PHAs may define the
term ``common household pet'' under Sec. 5.318.
Elderly or disabled family means:
(1) For purposes of Housing programs: An elderly person, a person
with a disability, or an elderly or disabled family for purposes of the
program under which a project for the elderly or persons with
disabilities is assisted or has its mortgage insured.
(2) For purposes of Public Housing programs: (i) An elderly person,
a person with a disability, or an elderly or disabled family as defined
in Sec. 5.403 in subpart A of this part.
(ii) [Reserved]
[[Page 71]]
Housing programs means:
(1) The housing programs administered by the Assistant Secretary for
Housing-Federal Housing Commissioner; and
(2) The programs contained in chapter VIII of this title 24 that
assist rental projects that meet the definition of project for the
elderly or persons with disabilities in this subpart C.
Project for the elderly or persons with disabilities means:
(1) For purposes of Housing programs: (i) A specific rental or
cooperative multifamily property that, unless currently owned by HUD, is
subject to a first mortgage, and:
(A) That is assisted under statutory authority identified by HUD
through notice;
(B) That was designated for occupancy by elderly or disabled
families when funds for the project were reserved, or when the
commitment to insure the mortgage was issued or, of not then so
designated, that is designated for such occupancy in an effective
amendment to the regulatory agreement covering the project, made
pursuant to the project owner's request, and that is assisted or insured
under one of the programs identified by HUD through notice; or
(C) For which preference in tenant selection is given for all units
in the project to elderly or disabled families and that is owned by HUD
or assisted under one of the programs identified by HUD through notice.
(ii) This term does not include health and care facilities that have
mortgage insurance under the National Housing Act. This term also does
not include any of the project owner's other property that does not meet
the criteria contained in any one of paragraphs (1)(i)(A) through (C) of
this definition, even if the property is adjacent to or under joint or
common management with such specific property.
(2) For purposes of Public Housing programs: Any project assisted
under title I of the United States Housing Act of 1937 (other than under
section 8 or 17 of the Act), including any building within a mixed-use
project, that was designated for occupancy by the elderly or persons
with disabilities at its inception or, although not so designated, for
which the PHA gives preference in tenant selection (with HUD approval)
for all units in the project (or for a building within a mixed-use
project) to elderly or disabled families. For purposes of this part,
this term does not include projects assisted the Low-Rent Housing
Homeownership Opportunity program or under title II of the United States
Housing Act of 1937.
Project owner means an owner (including HUD, where HUD is the owner)
or manager of a project for the elderly or persons with disabilities, or
an agent authorized to act for an owner or manager of such housing.
Public Housing Agency (PHA) is defined in Sec. 5.100.
[61 FR 5202, Feb. 9, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.309 Prohibition against discrimination.
Except as otherwise specifically authorized under this subpart no
project owner or PHA that owns or manages a project for the elderly or
persons with disabilities may:
(a) As a condition of tenancy or otherwise, prohibit or prevent any
tenant of such housing from owning common household pets or having such
pets living in the tenant's dwelling unit; or
(b) Restrict or discriminate against any person in connection with
admission to, or continued occupancy of, such housing by reason of the
person's ownership of common household pets or the presence of such pets
in the person's dwelling unit.
Sec. 5.312 Notice to tenants.
(a) During the development of pet rules as described in Sec. Sec.
5.353 or 5.380, the project owner or PHA shall serve written notice on
all tenants of projects for the elderly or persons with disabilities in
occupancy at the time of service, stating that:
(1) Tenants are permitted to own and keep common household pets in
their dwelling units, in accordance with the pet rules (if any)
promulgated under this subpart C;
(2) Animals that are used to assist persons with disabilities are
excluded from the requirements of this subpart C, as provided in Sec.
5.303;
[[Page 72]]
(3) Tenants may, at any time, request a copy of any current pet rule
developed under this subpart C (as well as any current proposed rule or
proposed amendment to an existing rule); and
(4) Tenants may request that their leases be amended under Sec.
5.321 to permit common household pets.
(b) The project owner or PHA shall provide to each applicant for
tenancy when he or she is offered a dwelling unit in a project for the
elderly or persons with disabilities, the written notice specified in
paragraphs (a) (1), (2), and (3) of this section.
(c) If a PHA chooses not to promulgate pet rules, the notice shall
be served within 60 days of the effective date of this part. PHAs shall
serve notice under this section in accordance with their normal service
of notice procedures.
Sec. 5.315 Content of pet rules: General requirements.
(a) Housing programs. The project owner shall prescribe reasonable
rules to govern the keeping of common household pets. The pet rules must
include the mandatory rules described in Sec. 5.350 and may, unless
otherwise noted in this subpart C, include other discretionary
provisions as provided in Sec. 5.318.
(b) Public Housing programs. (1) PHAs may choose not to promulgate
rules governing the keeping of common household pets or may include
rules as provided in Sec. 5.318. PHAs may elect to include provisions
based on those in Sec. 5.350. If they so choose, the PHAs may modify
the provisions in Sec. 5.350 in any manner consistent with this subpart
C.
(2) If PHAs choose to promulgate pet rules, tenants must be
permitted to own and keep pets in their units in accordance with the
terms and conditions of their leases, the provisions of this subpart C,
and any applicable State or local law or regulation governing the owning
or keeping of pets in dwelling accommodations.
(3) PHAs that choose not to promulgate pet rules, shall not impose,
by lease modification or otherwise, any requirement that is inconsistent
with the provisions of this subpart C.
(c) Use of discretion. (1) This subpart C does not define with
specificity the limits of the project owners' or PHAs' discretion to
promulgate pet rules. Where a project owner or PHA has discretion to
prescribe pet rules under this subpart C, the pet rules should be:
(i) Reasonably related to furthering a legitimate interest of the
project owner or PHA, such as the owner's or PHA's interest in providing
a decent, safe, and sanitary living environment for existing and
prospective tenants and in protecting and preserving the physical
condition of the project and the owner's or PHA's financial interest in
it; and
(ii) Drawn narrowly to achieve the owner's or PHA's legitimate
interests, without imposing unnecessary burdens and restrictions on pet
owners and prospective pet owners.
(2) Where a project owner or PHA has discretion to prescribe pet
rules under this subpart C, the owner or PHA may vary the rules' content
among projects and within individual projects, based on factors such as
the size, type, location, and occupancy of the project or its units,
provided that the applicable rules are reasonable and do not conflict
with any applicable State or local law or regulation governing the
owning or keeping of pets in dwelling accommodations.
(d) Conflict with State or local law. The pet rules adopted by the
project owner or PHA shall not conflict with applicable State or local
law or regulations. If such a conflict may exist, the State and local
law or regulations shall apply.
Sec. 5.318 Discretionary pet rules.
Pet rules promulgated by project owners and PHAs may include, but
are not limited to, consideration of the following factors:
(a) Definitions of ``common household pet''--(1) For Public Housing
programs. The pet rules established by a PHA may contain a reasonable
definition of a common household pet.
(2) For Housing programs. Project owners wishing to define ``common
household pet'' in their pet rules must use the Housing programs
definition of the term in Sec. 5.306.
(b) Density of tenants and pets. (1)(i) The pet rules established
under this section may take into account tenant
[[Page 73]]
and pet density. The pet rules may place reasonable limitations on the
number of common household pets that may be allowed in each dwelling
unit. In the case of group homes, the pet rules may place reasonable
limitations on the number of common household pets that may be allowed
in each home.
(ii) For Housing programs. Under these rules, project owners may
limit the number of four-legged, warm-blooded pets to one pet in each
dwelling unit or group home.
(iii) Other than the limitations described in this paragraph (b)(1),
the pet rules may not limit the total number of pets allowed in the
project.
(2) As used in paragraph (b)(1) of this section, the term ``group
home'' means:
(i) For purposes of Housing programs. A small, communal living
arrangement designed specifically for individuals who are chronically
mentally ill, developmentally disabled, or physically disabled who
require a planned program of continual supportive services or
supervision (other than continual nursing, medical or psychiatric care).
(ii) For purposes of Public Housing programs. A dwelling or dwelling
unit for the exclusive residential use of elderly persons or persons
with disabilities who are not capable of living completely independently
and who require a planned program of continual supportive services or
supervision (other than continual nursing, medical or psychiatric care).
(c) Pet size and pet type. The pet rules may place reasonable
limitations on the size, weight, and type of common household pets
allowed in the project.
(d) Potential financial obligations of tenants--(1) Pet deposits.
The pet rules may require tenants who own or keep pets in their units to
pay a refundable pet deposit. In the case of project owners, this pet
deposit shall be limited to those tenants who own or keep cats or dogs
in their units. This deposit is in addition to any other financial
obligation generally imposed on tenants of the project. The project
owner or PHA may use the pet deposit only to pay reasonable expenses
directly attributable to the presence of the pet in the project,
including (but not limited to) the cost of repairs and replacements to,
and fumigation of, the tenant's dwelling unit and, for project owners,
the cost of animal care facilities under Sec. 5.363. The project owner
or PHA shall refund the unused portion of the pet deposit to the tenant
within a reasonable time after the tenant moves from the project or no
longer owns or keeps a pet (or a cat or dog in the case of project
owners) in the dwelling unit.
(2) Housing programs: Maximum pet deposit. (i) Pet deposits for the
following tenants shall not exceed an amount periodically fixed by HUD
through notice.
(A) Tenants whose rents are subsidized (including tenants of a HUD-
owned project, whose rents were subsidized before HUD acquired it) under
one of the programs identified by HUD through notice.
(B) Tenants who live in a project assisted (including tenants who
live in a HUD-owned project that was assisted before HUD acquired it)
under one of the programs identified by HUD through notice.
(C) For all other tenants of projects for the elderly or persons
with disabilities, the pet deposit shall not exceed one month's rent at
the time the pet is brought onto the premises.
(ii) In establishing the maximum amount of pet deposit under
paragraph (d)(2)(i) of this section, HUD will consider factors such as:
(A) Projected, estimated expenses directly attributable to the
presence of pets in the project;
(B) The ability of project owners to offset such expenses by use of
security deposits or HUD-reimbursable expenses; and
(C) The low income status of tenants of projects for the elderly or
persons with disabilities.
(iii) For pet deposits subject to paragraph (d)(2)(i)(A) of this
section, the pet rules shall provide for gradual accumulation of the
deposit by the pet owner through an initial payment not to exceed $50
when the pet is brought onto the premises, and subsequent monthly
payments not to exceed $10 per month until the amount of the deposit is
reached.
(iv) For pet deposits subject to paragraphs (d)(2)(i)(B) and (C) of
this section, the pet rules may provide for
[[Page 74]]
gradual accumulation of the deposit by the pet owner.
(v) The project owner may (subject to the HUD-prescribed limits)
increase the amount of the pet deposit by amending the house pet rules
in accordance with Sec. 5.353.
(A) For pet deposits subject to paragraph (d)(2)(i)(A) of this
section, the house pet rules shall provide for gradual accumulation of
any such increase not to exceed $10 per month for all deposit amounts
that are being accumulated.
(B) [Reserved]
(vi) Any pet deposit that is established within the parameters set
forth by paragraph (d)(2) of this section shall be deemed reasonable for
purposes of this subpart C.
(3) Public Housing programs: Maximum pet deposit. The maximum amount
of pet deposit that may be charged by the PHA, on a per dwelling unit
basis, shall not exceed the higher of the Total Tenant Payment (as
defined in 24 CFR 913.102) or such reasonable fixed amount as the PHA
may require. The pet rules may permit gradual accumulation of the pet
deposit by the pet owner.
(4) Housing programs: Waste removal charge. The pet rules may permit
the project owner to impose a separate waste removal charge of up to
five dollars ($5) per occurrence on pet owners that fail to remove pet
waste in accordance with the prescribed pet rules. Any pet waste removal
charge that is within this five dollar ($5) limitation shall be deemed
to be a reasonable amount for the purposes of this subpart C.
(5) The pet deposit (for Housing and Public Housing programs) and
waste removal charge (for Housing programs) are not part of the rent
payable by the tenant. Except as provided in paragraph (d) of this
section for Housing programs and, paragraph (d) of this section and 24
CFR 966.4(b) for Public Housing programs, project owners or PHAs may not
prescribe pet rules that impose additional financial obligations on pet
owners that are designed to compensate the project owner or PHA for
costs associated with the presence of pets in the project, including
(but not limited to) requiring pet owners:
(i) To obtain liability or other insurance to cover damage caused by
the pet;
(ii) To agree to be strictly liable for all damages caused by the
pet where this liability is not otherwise imposed by State or local law,
or
(iii) To indemnify the project owner for pet-related litigation and
attorney's fees.
(e) Standards of pet care. The pet rules may prescribe standards of
pet care and handling, but must be limited to those necessary to protect
the condition of the tenant's unit and the general condition of the
project premises, or to protect the health or safety of present tenants,
project employees, and the public. The pet rules may not require pet
owners to have any pet's vocal cords removed. Permitted rules may:
(1) Bar pets from specified common areas (such as lobbies, laundry
rooms, and social rooms), unless the exclusion will deny a pet
reasonable ingress and egress to the project or building.
(2) Require the pet owner to control noise and odor caused by a pet.
(3) Housing programs: Project owners may also:
(i) Require pet owners to have their dogs and cats spayed or
neutered; and
(ii) Limit the length of time that a pet may be left unattended in a
dwelling unit.
(f) Pet licensing. The pet rules may require pet owners to license
their pets in accordance with applicable State and local laws and
regulations. (Failure of the pet rules to contain this requirement does
not relieve the pet owner of responsibility for complying with
applicable State and local pet licensing requirements.)
(g) Public Housing programs: Designated pet areas. (1) PHAs may
designate buildings, floors of buildings, or sections of buildings as
no-pet areas where pets generally may not be permitted. Similarly, the
pet rules may designate buildings, floors of buildings, or sections of
buildings for residency generally by pet-owning tenants. The PHA may
direct such initial tenant moves as may be necessary to establish pet
and no-pet areas. The PHA may not refuse to admit (or delay admission
of) an applicant for tenancy on the
[[Page 75]]
grounds that the applicant's admission would violate a pet or no-pet
area. The PHA may adjust the pet and no-pet areas or may direct such
additional moves as may be necessary (or both) to accommodate such
applicants for tenancy or to meet the changing needs of existing
tenants.
(2) Project owners may not designate pet areas in buildings in their
pet rules.
(h) Pets temporarily on the premises. The pet rules may exclude from
the project pets not owned by a tenant that are to be kept temporarily
on the project premises. For the purposes of paragraph (h) of this
section, pets are to be kept ``temporarily'' if they are to be kept in
the tenant's dwelling accommodations for a period of less than 14
consecutive days and nights. HUD, however, encourages project owners and
PHAs to permit the use of a visiting pet program sponsored by a humane
society, or other nonprofit organization.
Sec. 5.321 Lease provisions.
(a) Lease provisions. (1) PHAs which have established pet rules and
project owners shall ensure that the leases for all tenants of projects
for the elderly or persons with disabilities:
(i) State that tenants are permitted to keep common household pets
in their dwelling units (subject to the provisions of this subpart and
the pet rules);
(ii) Shall incorporate by reference the pet rules promulgated by the
project owner or PHA;
(iii) Shall provide that the tenant agrees to comply with these
rules; and
(iv) Shall state that violation of these rules may be grounds for
removal of the pet or termination of the pet owner's tenancy (or both),
in accordance with the provisions of this subpart and applicable
regulations and State or local law.
(2) [Reserved]
(b) Where a PHA has not established pet rules, the leases of all
tenants of such projects shall not contain any provisions prohibiting
the owning or keeping of common household pets, and shall state that
owning and keeping of such pets will be subject to the general
obligations imposed on the PHA and tenants in the lease and any
applicable State or local law or regulation governing the owning or
keeping of pets in dwelling accommodations.
Sec. 5.324 Implementation of lease provisions.
The lease for each tenant of a project for the elderly or persons
with disabilities who is admitted on or after the date on which this
subpart C is implemented shall contain the lease provisions described in
Sec. 5.321 and, if applicable, Sec. 5.360. The lease for each tenant
who occupies a unit in such a project under lease on the date of
implementation of this part shall be amended to include the provisions
described in Sec. 5.321 and, if applicable, Sec. 5.360:
(a) For Housing programs:
(1) Upon renewal of the lease and in accordance with any applicable
regulation; and
(2) When a Housing program tenant registers a common household pet
under Sec. 5.350
(b) For Public Housing programs:
(1) Upon annual reexamination of tenant income in accordance with
any applicable regulation; and
(2) When a Public Housing program tenant wishes to own or keep a
common household pet in his or her unit.
Sec. 5.327 Nuisance or threat to health or safety.
Nothing in this subpart C prohibits a project owner, PHA, or an
appropriate community authority from requiring the removal of any pet
from a project, if the pet's conduct or condition is duly determined to
constitute, under the provisions of State or local law, a nuisance or a
threat to the health or safety of other occupants of the project or of
other persons in the community where the project is located.
Pet Ownership Requirements for Housing Programs
Sec. 5.350 Mandatory pet rules for housing programs.
Mandatory rules. The project owner must prescribe the following pet
rules:
(a) Inoculations. The pet rules shall require pet owners to have
their pets inoculated in accordance with State and local laws.
[[Page 76]]
(b) Sanitary standards. (1) The pet rules shall prescribe sanitary
standards to govern the disposal of pet waste. These rules may:
(i) Designate areas on the project premises for pet exercise and the
deposit of pet waste;
(ii) Forbid pet owners from exercising their pets or permitting
their pets to deposit waste on the project premises outside the
designated areas;
(iii) Require pet owners to remove and properly dispose of all
removable pet waste; and
(iv) Require pet owners to remove pets from the premises to permit
the pet to exercise or deposit waste, if no area in the project is
designated for such purposes.
(2) In the case of cats and other pets using litter boxes, the pet
rules may require the pet owner to change the litter (but not more than
twice each week), may require pet owners to separate pet waste from
litter (but not more than once each day), and may prescribe methods for
the disposal of pet waste and used litter.
(c) Pet restraint. The pet rules shall require that all cats and
dogs be appropriately and effectively restrained and under the control
of a responsible individual while on the common areas of the project.
(d) Registration. (1) The pet rules shall require pet owners to
register their pets with the project owner. The pet owner must register
the pet before it is brought onto the project premises, and must update
the registration at least annually. The project owner may coordinate the
annual update with the annual reexamination of tenant income, if
applicable. The registration must include:
(i) A certificate signed by a licensed veterinarian or a State or
local authority empowered to inoculate animals (or designated agent of
such an authority) stating that the pet has received all inoculations
required by applicable State and local law;
(ii) Information sufficient to identify the pet and to demonstrate
that it is a common household pet; and
(iii) The name, address, and phone number of one or more responsible
parties who will care for the pet if the pet owner dies, is
incapacitated, or is otherwise unable to care for the pet.
(2) The project owner may require the pet owner to provide
additional information necessary to ensure compliance with any
discretionary rules prescribed under Sec. 5.318, and shall require the
pet owner to sign a statement indicating that he or she has read the pet
rules and agrees to comply with them.
(3) The pet rules shall permit the project owner to refuse to
register a pet if:
(i) The pet is not a common household pet;
(ii) The keeping of the pet would violate any applicable house pet
rule;
(iii) The pet owner fails to provide complete pet registration
information or fails annually to update the pet registration; or
(iv) The project owner reasonably determines, based on the pet
owner's habits and practices, that the pet owner will be unable to keep
the pet in compliance with the pet rules and other lease obligations.
The pet's temperament may be considered as a factor in determining the
prospective pet owner's ability to comply with the pet rules and other
lease obligations.
(4) The project owner may not refuse to register a pet based on a
determination that the pet owner is financially unable to care for the
pet or that the pet is inappropriate, based on the therapeutic value to
the pet owner or the interests of the property or existing tenants.
(5) The pet rules shall require the project owner to notify the pet
owner if the project owner refuses to register a pet. The notice shall
state the basis for the project owner's action and shall be served on
the pet owner in accordance with the requirements of Sec.
5.353(f)(1)(i) or (ii). The notice of refusal to register a pet may be
combined with a notice of pet violation as required in Sec. 5.356.
Sec. 5.353 Housing programs: Procedure for development of pet rules.
(a) General. Project owners shall use the procedures specified in
this section to promulgate the pet rules referred to in Sec. Sec. 5.318
and 5.350.
(b) Development and notice of proposed pet rules. Project owners
shall develop proposed rules to govern the owning or
[[Page 77]]
keeping of common household pets in projects for the elderly or persons
with disabilities. Notice of the proposed pet rules shall be served on
each tenant of the project as provided in paragraph (f) of this section.
The notice shall:
(1) Include the text of the proposed rules;
(2) State that tenants or tenant representatives may submit written
comments on the rules; and
(3) State that all comments must be submitted to the project owner
no later than 30 days from the effective date of the notice of the
proposed rules.
(4) The notice may also announce the date, time, and place for a
meeting to discuss the proposed rules (as provided in paragraph (c) of
this section).
(c) Tenant consultation. Tenants or tenant representatives may
submit written comments on the proposed pet rules to the project owner
by the date specified in the notice of proposed rules. In addition, the
owner may schedule one or more meetings with tenants during the comment
period to discuss the proposed rules. Tenants and tenant representatives
may make oral comments on the proposed rules at these meetings. The
project owner must consider comments made at these meetings only if they
are summarized, reduced to writing, and submitted to the project owner
before the end of the comment period.
(d) Development and notice of final pet rules. The project owner
shall develop the final rules after reviewing tenants' written comments
and written summaries of any owner-tenant meetings. The project owner
may meet with tenants and tenant representatives to attempt to resolve
issues raised by the comments. Subject to this subpart C, the content of
the final pet rules, however, is within the sole discretion of the
project owner. The project owner shall serve on each tenant of the
project, a notice of the final pet rules as provided in paragraph (f) of
this section. The notice must include the text of the final pet rules
and must specify the effective date of the final pet rules.
(e) Amendment of pet rules. The project owner may amend the pet
rules at any time by following the procedure for the development of pet
rules specified in paragraphs (b) through (d) of this section.
(f) Service of notice. (1) The project owner must serve the notice
required under this section by:
(i) Sending a letter by first class mail, properly stamped and
addressed to the tenant at the dwelling unit, with a proper return
address; or
(ii) Serving a copy of the notice on any adult answering the door at
the tenant's leased dwelling unit, or if no adult responds, by placing
the notice under or through the door, if possible, or else by attaching
the notice to the door; or
(iii) For service of notice to tenants of a high-rise building,
posting the notice in at least three conspicuous places within the
building and maintaining the posted notices intact and in legible form
for 30 days. For purposes of paragraph (f) of this section, a high-rise
building is a structure that is equipped with an elevator and has a
common lobby.
(2) For purposes of computing time periods following service of the
notice, service is effective on the day that all notices are delivered
or mailed, or in the case of service by posting, on the day that all
notices are initially posted.
Sec. 5.356 Housing programs: Pet rule violation procedures.
(a) Notice of pet rule violation. If a project owner determines on
the basis of objective facts, supported by written statements, that a
pet owner has violated a rule governing the owning or keeping of pets;
the project owner may serve a written notice of pet rule violation on
the pet owner in accordance with Sec. 5.353(f)(1)(i) or (ii). The
notice of pet rule violation must:
(1) Contain a brief statement of the factual basis for the
determination and the pet rule or rules alleged to be violated;
(2) State that the pet owner has 10 days from the effective date of
service of the notice to correct the violation (including, in
appropriate circumstances, removal of the pet) or to make a written
request for a meeting to discuss the violation;
[[Page 78]]
(3) State that the pet owner is entitled to be accompanied by
another person of his or her choice at the meeting; and
(4) State that the pet owner's failure to correct the violation, to
request a meeting, or to appear at a requested meeting may result in
initiation of procedures to terminate the pet owner's tenancy.
(b)(1) Pet rule violation meeting. If the pet owner makes a timely
request for a meeting to discuss an alleged pet rule violation, the
project owner shall establish a mutually agreeable time and place for
the meeting but no later than 15 days from the effective date of service
of the notice of pet rule violation (unless the project owner agrees to
a later date). At the pet rule violation meeting, the pet owner and
project owner shall discuss any alleged pet rule violation and attempt
to correct it. The project owner may, as a result of the meeting, give
the pet owner additional time to correct the violation.
(2) Notice for pet removal. If the pet owner and project owner are
unable to resolve the pet rule violation at the pet rule violation
meeting, or if the project owner determines that the pet owner has
failed to correct the pet rule violation within any additional time
provided for this purpose under paragraph (b)(1) of this section, the
project owner may serve a written notice on the pet owner in accordance
with Sec. 5.353(f)(1) (i) or (ii) (or at the meeting, if appropriate),
requiring the pet owner to remove the pet. The notice must:
(i) Contain a brief statement of the factual basis for the
determination and the pet rule or rules that have been violated;
(ii) State that the pet owner must remove the pet within 10 days of
the effective date of service of the notice of pet removal (or the
meeting, if notice is served at the meeting); and
(iii) State that failure to remove the pet may result in initiation
of procedures to terminate the pet owner's tenancy.
(c) Initiation of procedures to remove a pet or terminate the pet
owner's tenancy. (1) The project owner may not initiate procedures to
terminate a pet owner's tenancy based on a pet rule violation, unless:
(i) The pet owner has failed to remove the pet or correct a pet rule
violation within the applicable time period specified in this section
(including any additional time permitted by the owner); and
(ii) The pet rule violation is sufficient to begin procedures to
terminate the pet owner's tenancy under the terms of the lease and
applicable regulations.
(2) The project owner may initiate procedures to remove a pet under
Sec. 5.327 at any time, in accordance with the provisions of applicable
State or local law.
Sec. 5.359 Housing programs: Rejection of units by applicants
for tenancy.
(a) An applicant for tenancy in a project for the elderly or persons
with disabilities may reject a unit offered by a project owner if the
unit is in close proximity to a dwelling unit in which an existing
tenant of the project owns or keeps a common household pet. An
applicant's rejection of a unit under this section shall not adversely
affect his or her application for tenancy in the project, including (but
not limited to) his or her position on the project waiting list or
qualification for any tenant selection preference.
(b) Nothing in this subpart C imposes a duty on project owners to
provide alternate dwelling units to existing or prospective tenants
because of the proximity of common household pets to a particular unit
or the presence of such pets in the project.
Sec. 5.360 Housing programs: Additional lease provisions.
(a) Inspections. In addition to other inspections permitted under
the lease, the leases for all Housing program tenants of projects for
the elderly or persons with disabilities may state that the project
owner may, after reasonable notice to the tenant and during reasonable
hours, enter and inspect the premises. The lease shall permit entry and
inspection only if the project owner has received a signed, written
complaint alleging (or the project owner has reasonable grounds to
believe) that the conduct or condition of a pet in the dwelling unit
constitutes, under applicable State or local law, a
[[Page 79]]
nuisance or a threat to the health or safety of the occupants of the
project or other persons in the community where the project is located.
(b) Emergencies. (1) If there is no State or local authority (or
designated agent of such an authority) authorized under applicable State
or local law to remove a pet that becomes vicious, displays symptoms of
severe illness, or demonstrates other behavior that constitutes an
immediate threat to the health or safety of the tenancy as a whole, the
project owner may place a provision in tenant leases permitting the
project owner to enter the premises (if necessary), remove the pet, and
take such action with respect to the pet as may be permissible under
State and local law, which may include placing it in a facility that
will provide care and shelter for a period not to exceed 30 days.
(2) The lease shall permit the project owner to enter the premises
and remove the pet or take such other permissible action only if the
project owner requests the pet owner to remove the pet from the project
immediately, and the pet owner refuses to do so, or if the project owner
is unable to contact the pet owner to make a removal request. The lease
may not contain a provision relieving the project owner from liability
for wrongful removal of a pet. The cost of the animal care facility
shall be paid as provided in Sec. 5.363.
(3) The project owner may place a provision in tenant leases
permitting the project owner to enter the premises, remove the pet, and
place the pet in a facility that will provide care and shelter, in
accordance with the provisions of Sec. 5.363. The lease may not contain
a provision relieving the project owner from liability for wrongful
removal of a pet.
Sec. 5.363 Housing programs: Protection of the pet.
(a) If the health or safety of a pet is threatened by the death or
incapacity of the pet owner, or by other factors that render the pet
owner unable to care for the pet, the project owner may contact the
responsible party or parties listed in the pet registration required
under Sec. 5.350(d)(1)(iii).
(b) If the responsible party or parties are unwilling or unable to
care for the pet, or the project owner, despite reasonable efforts, has
been unable to contact the responsible party or parties, the project
owner may contact the appropriate State or local authority (or
designated agent of such an authority) and request the removal of the
pet.
(c) If there is no State or local authority (or designated agent of
such an authority) authorized to remove a pet under these circumstances
and the project owner has placed a provision in the lease agreement (as
described in Sec. 5.360(c)(2)), the project owner may enter the pet
owner's unit, remove the pet, and place the pet in a facility that will
provide care and shelter until the pet owner or a representative of the
pet owner is able to assume responsibility for the pet, but not longer
than 30 days.
(d) The cost of the animal care facility provided under this section
shall be borne by the pet owner. If the pet owner (or the pet owner's
estate) is unable or unwilling to pay, the cost of the animal care
facility may be paid from the pet deposit, if imposed under the pet
rules.
Pet Ownership Requirements for Public Housing Programs
Sec. 5.380 Public housing programs: Procedure for development of
pet rules.
PHAs that choose to promulgate pet rules shall consult with tenants
of projects for the elderly or persons with disabilities administered by
them with respect to their promulgation and subsequent amendment. PHAs
shall develop the specific procedures governing tenant consultation, but
these procedures must be designed to give tenants (or, if appropriate,
tenant councils) adequate opportunity to review and comment upon the pet
rules before they are issued for effect. PHAs are solely responsible for
the content of final pet rules, but must give consideration to tenant
comments. PHAs shall send to the responsible HUD field office, copies of
the final (or amended) pet rules, as well as summaries or copies of all
tenant comments received in the course of the tenant consultation.
[[Page 80]]
Subpart D_Definitions for Section 8 and Public Housing Assistance Under
the United States Housing Act of 1937
Authority: 42 U.S.C. 1437a and 3535(d).
Source: 61 FR 5665, Feb. 13, 1996, unless otherwise noted.
Sec. 5.400 Applicability.
This part applies to public housing and Section 8 programs.
[61 FR 5665, Feb. 13, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.403 Definitions.
Annual contributions contract (ACC) means the written contract
between HUD and a PHA under which HUD agrees to provide funding for a
program under the 1937 Act, and the PHA agrees to comply with HUD
requirements for the program.
Applicant means a person or a family that has applied for housing
assistance.
Disabled family means a family whose head (including co-head),
spouse, or sole member is a person with a disability. It may include two
or more persons with disabilities living together, or one or more
persons with disabilities living with one or more live-in aides.
Displaced family means a family in which each member, or whose sole
member, is a person displaced by governmental action, or a person whose
dwelling has been extensively damaged or destroyed as a result of a
disaster declared or otherwise formally recognized pursuant to Federal
disaster relief
Elderly family means a family whose head (including co-head),
spouse, or sole member is a person who is at least 62 years of age. It
may include two or more persons who are at least 62 years of age living
together, or one or more persons who are at least 62 years of age living
with one or more live-in aides.
Family includes, but is not limited to, the following, regardless of
actual or perceived sexual orientation, gender identity, or marital
status:
(1) A single person, who may be an elderly person, displaced person,
disabled person, near-elderly person, or any other single person; or
(2) A group of persons residing together, and such group includes,
but is not limited to:
(i) A family with or without children (a child who is temporarily
away from the home because of placement in foster care is considered a
member of the family);
(ii) An elderly family;
(iii) A near-elderly family;
(iv) A disabled family;
(v) A displaced family; and
(vi) The remaining member of a tenant family.
Live-in aide means a person who resides with one or more elderly
persons, or near-elderly persons, or persons with disabilities, and who:
(1) Is determined to be essential to the care and well-being of the
persons;
(2) Is not obligated for the support of the persons; and
(3) Would not be living in the unit except to provide the necessary
supportive services.
Near-elderly family means a family whose head (including co-head),
spouse, or sole member is a person who is at least 50 years of age but
below the age of 62; or two or more persons, who are at least 50 years
of age but below the age of 62, living together; or one or more persons
who are at least 50 years of age but below the age of 62, living with
one or more live-in aides.
Person with disabilities:
(1) Means a person who:
(i) Has a disability, as defined in 42 U.S.C. 423;
(ii) Is determined, pursuant to HUD regulations, to have a physical,
mental, or emotional impairment that:
(A) Is expected to be of long-continued and indefinite duration;
(B) Substantially impedes his or her ability to live independently,
and
(C) Is of such a nature that the ability to live independently could
be improved by more suitable housing conditions; or
(iii) Has a developmental disability as defined in 42 U.S.C. 6001.
(2) Does not exclude persons who have the disease of acquired
immunodeficiency syndrome or any conditions arising from the etiologic
agent for acquired immunodeficiency syndrome;
[[Page 81]]
(3) For purposes of qualifying for low-income housing, does not
include a person whose disability is based solely on any drug or alcohol
dependence; and
(4) Means ``individual with handicaps'', as defined in Sec. 8.3 of
this title, for purposes of reasonable accommodation and program
accessibility for persons with disabilities.
[61 FR 5665, Feb. 13, 1996, as amended at 63 FR 23853, Apr. 30, 1998; 65
FR 16715, Mar. 29, 2000; 77 FR 5674, Feb. 3, 2012]
Subpart E_Restrictions on Assistance to Noncitizens
Authority: 42 U.S.C. 1436a and 3535(d).
Sec. 5.500 Applicability.
(a) Covered programs/assistance. This subpart E implements Section
214 of the Housing and Community Development Act of 1980, as amended (42
U.S.C. 1436a). Section 214 prohibits HUD from making financial
assistance available to persons who are not in eligible status with
respect to citizenship or noncitizen immigration status. This subpart E
is applicable to financial assistance provided under:
(1) Section 235 of the National Housing Act (12 U.S.C. 1715z) (the
Section 235 Program);
(2) Section 236 of the National Housing Act (12 U.S.C. 1715z-1)
(tenants paying below market rent only) (the Section 236 Program);
(3) Section 101 of the Housing and Urban Development Act of 1965 (12
U.S.C. 1701s) (the Rent Supplement Program); and
(4) The United States Housing Act of 1937 (42 U.S. C. 1437 et seq.)
which covers:
(i) HUD's Public Housing Programs;
(ii) The Section 8 Housing Assistance Programs; and
(iii) The Housing Development Grant Programs (with respect to low
income units only).
(b) Covered individuals and entities--(1) Covered individuals/
persons and families. The provisions of this subpart E apply to both
applicants for assistance and persons already receiving assistance
covered under this subpart E.
(2) Covered entities. The provisions of this subpart E apply to
Public Housing Agencies (PHAs), project (or housing) owners, and
mortgagees under the Section 235 Program. The term ``responsible
entity'' is used in this subpart E to refer collectively to these
entities, and is further defined in Sec. 5.504.
Sec. 5.502 Requirements concerning documents.
For any notice or document (decision, declaration, consent form,
etc.) that this subpart E requires the responsible entity to provide to
an individual, or requires the responsible entity to obtain the
signature of an individual, the responsible entity, where feasible, must
arrange for the notice or document to be provided to the individual in a
language that is understood by the individual if the individual is not
proficient in English. (See 24 CFR 8.6 of HUD's regulations for
requirements concerning communications with persons with disabilities.)
Sec. 5.504 Definitions.
(a) The definitions 1937 Act, HUD, Public Housing Agency (PHA), and
Section 8 are defined in subpart A of this part.
(b) As used in this subpart E:
Child means a member of the family other than the family head or
spouse who is under 18 years of age.
Citizen means a citizen or national of the United States.
Evidence of citizenship or eligible status means the documents which
must be submitted to evidence citizenship or eligible immigration
status. (See Sec. 5.508(b).)
Family has the same meaning as provided in the program regulations
of the relevant Section 214 covered program.
Head of household means the adult member of the family who is the
head of the household for purposes of determining income eligibility and
rent.
Housing covered programs means the following programs administered
by the Assistant Secretary for Housing:
(1) Section 235 of the National Housing Act (12 U.S.C. 1715z) (the
Section 235 Program);
(2) Section 236 of the National Housing Act (12 U.S.C. 1715z-1)
(tenants paying below market rent only) (the Section 236 Program); and
[[Page 82]]
(3) Section 101 of the Housing and Urban Development Act of 1965 (12
U.S.C. 1701s) (the Rent Supplement Program).
INS means the U.S. Immigration and Naturalization Service.
Mixed family means a family whose members include those with
citizenship or eligible immigration status, and those without
citizenship or eligible immigration status.
National means a person who owes permanent allegiance to the United
States, for example, as a result of birth in a United States territory
or possession.
Noncitizen means a person who is neither a citizen nor national of
the United States.
Project owner means the person or entity that owns the housing
project containing the assisted dwelling unit.
Public Housing covered programs means the public housing programs
administered by the Assistant Secretary for Public and Indian Housing
under title I of the 1937 Act. This definition does not encompass HUD's
Indian Housing programs administered under title II of the 1937 Act.
Further, this term does not include those programs providing assistance
under section 8 of the 1937 Act. (See definition of ``Section 8 Covered
Programs'' in this section.)
Responsible entity means the person or entity responsible for
administering the restrictions on providing assistance to noncitizens
with ineligible immigrations status. The entity responsible for
administering the restrictions on providing assistance to noncitizens
with ineligible immigration status under the various covered programs is
as follows:
(1) For the Section 235 Program, the mortgagee.
(2) For Public Housing, the Section 8 Rental Certificate, the
Section 8 Rental Voucher, and the Section 8 Moderate Rehabilitation
programs, the PHA administering the program under an ACC with HUD.
(3) For all other Section 8 programs, the Section 236 Program, and
the Rent Supplement Program, the owner.
Section 8 covered programs means all HUD programs which assist
housing under Section 8 of the 1937 Act, including Section 8-assisted
housing for which loans are made under section 202 of the Housing Act of
1959.
Section 214 means section 214 of the Housing and Community
Development Act of 1980, as amended (42 U.S.C. 1436a).
Section 214 covered programs is the collective term for the HUD
programs to which the restrictions imposed by Section 214 apply. These
programs are set forth in Sec. 5.500.
Tenant means an individual or a family renting or occupying an
assisted dwelling unit. For purposes of this subpart E, the term tenant
will also be used to include a homebuyer, where appropriate.
Sec. 5.506 General provisions.
(a) Restrictions on assistance. Financial assistance under a Section
214 covered program is restricted to:
(1) Citizens; or
(2) Noncitizens who have eligible immigration status under one of
the categories set forth in Section 214 (see 42 U.S.C. 1436a(a)).
(b) Family eligibility for assistance. (1) A family shall not be
eligible for assistance unless every member of the family residing in
the unit is determined to have eligible status, as described in
paragraph (a) of this section, or unless the family meets the conditions
set forth in paragraph (b)(2) of this section.
(2) Despite the ineligibility of one or more family members, a mixed
family may be eligible for one of the three types of assistance provided
in Sec. Sec. 5.516 and 5.518. A family without any eligible members and
receiving assistance on June 19, 1995 may be eligible for temporary
deferral of termination of assistance as provided in Sec. Sec. 5.516
and 5.518.
(c) Preferences. Citizens of the Republic of Marshall Islands, the
Federated States of Micronesia, and the Republic of Palau who are
eligible for assistance under paragraph (a)(2) of this section are
entitled to receive local preferences for housing assistance, except
that, within Guam, such citizens who have such local preference will not
be entitled to housing assistance in preference
[[Page 83]]
to any United States citizen or national resident therein who is
otherwise eligible for such assistance.
[61 FR 5202, Feb. 9, 1996, as amended at 67 FR 65273, Oct. 23, 2002]
Sec. 5.508 Submission of evidence of citizenship or eligible
immigration status.
(a) General. Eligibility for assistance or continued assistance
under a Section 214 covered program is contingent upon a family's
submission to the responsible entity of the documents described in
paragraph (b) of this section for each family member. If one or more
family members do not have citizenship or eligible immigration status,
the family members may exercise the election not to contend to have
eligible immigration status as provided in paragraph (e) of this
section, and the provisions of Sec. Sec. 5.516 and 5.518 shall apply.
(b) Evidence of citizenship or eligible immigration status. Each
family member, regardless of age, must submit the following evidence to
the responsible entity.
(1) For U.S. citizens or U.S. nationals, the evidence consists of a
signed declaration of U.S. citizenship or U.S. nationality. The
responsible entity may request verification of the declaration by
requiring presentation of a United States passport or other appropriate
documentation, as specified in HUD guidance.
(2) For noncitizens who are 62 years of age or older or who will be
62 years of age or older and receiving assistance under a Section 214
covered program on September 30, 1996 or applying for assistance on or
after that date, the evidence consists of:
(i) A signed declaration of eligible immigration status; and
(ii) Proof of age document.
(3) For all other noncitizens, the evidence consists of:
(i) A signed declaration of eligible immigration status;
(ii) One of the INS documents referred to in Sec. 5.510; and
(iii) A signed verification consent form.
(c) Declaration. (1) For each family member who contends that he or
she is a U.S. citizen or a noncitizen with eligible immigration status,
the family must submit to the responsible entity a written declaration,
signed under penalty of perjury, by which the family member declares
whether he or she is a U.S. citizen or a noncitizen with eligible
immigration status.
(i) For each adult, the declaration must be signed by the adult.
(ii) For each child, the declaration must be signed by an adult
residing in the assisted dwelling unit who is responsible for the child.
(2) For Housing covered programs: The written declaration may be
incorporated as part of the application for housing assistance or may
constitute a separate document.
(d) Verification consent form--(1) Who signs. Each noncitizen who
declares eligible immigration status (except certain noncitizens who are
62 years of age or older as described in paragraph (b)(2) of this
section) must sign a verification consent form as follows.
(i) For each adult, the form must be signed by the adult.
(ii) For each child, the form must be signed by an adult residing in
the assisted dwelling unit who is responsible for the child.
(2) Notice of release of evidence by responsible entity. The
verification consent form shall provide that evidence of eligible
immigration status may be released by the responsible entity without
responsibility for the further use or transmission of the evidence by
the entity receiving it, to:
(i) HUD, as required by HUD; and
(ii) The INS for purposes of verification of the immigration status
of the individual.
(3) Notice of release of evidence by HUD. The verification consent
form also shall notify the individual of the possible release of
evidence of eligible immigration status by HUD. Evidence of eligible
immigration status shall only be released to the INS for purposes of
establishing eligibility for financial assistance and not for any other
purpose. HUD is not responsible for the further use or transmission of
the evidence or other information by the INS.
(e) Individuals who do not contend that they have eligible status.
If one or more
[[Page 84]]
members of a family elect not to contend that they have eligible
immigration status, and other members of the family establish their
citizenship or eligible immigration status, the family may be eligible
for assistance under Sec. Sec. 5.516 and 5.518, or Sec. 5.520, despite
the fact that no declaration or documentation of eligible status is
submitted for one or more members of the family. The family, however,
must identify in writing to the responsible entity, the family member
(or members) who will elect not to contend that he or she has eligible
immigration status.
(f) Notification of requirements of Section 214--(1) When notice is
to be issued. Notification of the requirement to submit evidence of
citizenship or eligible immigration status, as required by this section,
or to elect not to contend that one has eligible status as provided by
paragraph (e) of this section, shall be given by the responsible entity
as follows:
(i) Applicant's notice. The notification described in paragraph
(f)(1) of this section shall be given to each applicant at the time of
application for assistance. Applicants whose applications are pending on
June 19, 1995, shall be notified of the requirement to submit evidence
of eligible status as soon as possible after June 19, 1995.
(ii) Notice to tenants. The notification described in paragraph
(f)(1) of this section shall be given to each tenant at the time of, and
together with, the responsible entity's notice of regular reexamination
of income, but not later than one year following June 19, 1995.
(iii) Timing of mortgagor's notice. A mortgagor receiving Section
235 assistance must be provided the notification described in paragraph
(f)(1) of this section and any additional requirements imposed under the
Section 235 Program.
(2) Form and content of notice. The notice shall:
(i) State that financial assistance is contingent upon the
submission and verification, as appropriate, of evidence of citizenship
or eligible immigration status as required by paragraph (a) of this
section;
(ii) Describe the type of evidence that must be submitted, and state
the time period in which that evidence must be submitted (see paragraph
(g) of this section concerning when evidence must be submitted); and
(iii) State that assistance will be prorated, denied or terminated,
as appropriate, upon a final determination of ineligibility after all
appeals have been exhausted (see Sec. 5.514 concerning INS appeal, and
informal hearing process) or, if appeals are not pursued, at a time to
be specified in accordance with HUD requirements. Tenants also shall be
informed of how to obtain assistance under the preservation of families
provisions of Sec. Sec. 5.516 and 5.518.
(g) When evidence of eligible status is required to be submitted.
The responsible entity shall require evidence of eligible status to be
submitted at the times specified in paragraph (g) of this section,
subject to any extension granted in accordance with paragraph (h) of
this section.
(1) Applicants. For applicants, responsible entities must ensure
that evidence of eligible status is submitted not later than the date
the responsible entity anticipates or has knowledge that verification of
other aspects of eligibility for assistance will occur (see Sec.
5.512(a)).
(2) Tenants. For tenants, evidence of eligible status is required to
be submitted as follows:
(i) For financial assistance under a Section 214 covered program,
with the exception of Section 235 assistance payments, the required
evidence shall be submitted at the first regular reexamination after
June 19, 1995, in accordance with program requirements.
(ii) For financial assistance in the form of Section 235 assistance
payments, the mortgagor shall submit the required evidence in accordance
with requirements imposed under the Section 235 Program.
(3) New occupants of assisted units. For any new occupant of an
assisted unit (e.g., a new family member comes to reside in the assisted
unit), the required evidence shall be submitted at the first interim or
regular reexamination following the person's occupancy.
(4) Changing participation in a HUD program. Whenever a family
applies for admission to a Section 214 covered program, evidence of
eligible status is required to be submitted in accordance
[[Page 85]]
with the requirements of this subpart unless the family already has
submitted the evidence to the responsible entity for a Section 214
covered program.
(5) One-time evidence requirement for continuous occupancy. For each
family member, the family is required to submit evidence of eligible
status only one time during continuously assisted occupancy under any
Section 214 covered program.
(h) Extensions of time to submit evidence of eligible status--(1)
When extension must be granted. The responsible entity shall extend the
time, provided in paragraph (g) of this section, to submit evidence of
eligible immigration status if the family member:
(i) Submits the declaration required under Sec. 5.508(a) certifying
that any person for whom required evidence has not been submitted is a
noncitizen with eligible immigration status; and
(ii) Certifies that the evidence needed to support a claim of
eligible immigration status is temporarily unavailable, additional time
is needed to obtain and submit the evidence, and prompt and diligent
efforts will be undertaken to obtain the evidence.
(2) Thirty-day extension period. Any extension of time, if granted,
shall not exceed thirty (30) days. The additional time provided should
be sufficient to allow the individual the time to obtain the evidence
needed. The responsible entity's determination of the length of the
extension needed shall be based on the circumstances of the individual
case.
(3) Grant or denial of extension to be in writing. The responsible
entity's decision to grant or deny an extension as provided in paragraph
(h)(1) of this section shall be issued to the family by written notice.
If the extension is granted, the notice shall specify the extension
period granted (which shall not exceed thirty (30) days). If the
extension is denied, the notice shall explain the reasons for denial of
the extension.
(i) Failure to submit evidence or to establish eligible status. If
the family fails to submit required evidence of eligible immigration
status within the time period specified in the notice, or any extension
granted in accordance with paragraph (h) of this section, or if the
evidence is timely submitted but fails to establish eligible immigration
status, the responsible entity shall proceed to deny, prorate or
terminate assistance, or provide continued assistance or temporary
deferral of termination of assistance, as appropriate, in accordance
with the provisions of Sec. Sec. 5.514, 5.516, and 5.518.
(ii) [Reserved]
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60538, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
Sec. 5.510 Documents of eligible immigration status.
(a) General. A responsible entity shall request and review original
documents of eligible immigration status. The responsible entity shall
retain photocopies of the documents for its own records and return the
original documents to the family.
(b) Acceptable evidence of eligible immigration status. Acceptable
evidence of eligible immigration status shall be the original of a
document designated by INS as acceptable evidence of immigration status
in one of the six categories mentioned in Sec. 5.506(a) for the
specific immigration status claimed by the individual.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
Sec. 5.512 Verification of eligible immigration status.
(a) General. Except as described in paragraph (b) of this section
and Sec. 5.514, no individual or family applying for assistance may
receive such assistance prior to the verification of the eligibility of
at least the individual or one family member. Verification of
eligibility consistent with Sec. 5.514 occurs when the individual or
family members have submitted documentation to the responsible entity in
accordance with Sec. 5.508.
(b) PHA election to provide assistance before verification. A PHA
that is a responsible entity under this subpart may elect to provide
assistance to a family before the verification of the eligibility of the
individual or one family member.
(c) Primary verification--(1) Automated verification system. Primary
verification
[[Page 86]]
of the immigration status of the person is conducted by the responsible
entity through the INS automated system (INS Systematic Alien
Verification for Entitlements (SAVE)). The INS SAVE system provides
access to names, file numbers and admission numbers of noncitizens.
(2) Failure of primary verification to confirm eligible immigration
status. If the INS SAVE system does not verify eligible immigration
status, secondary verification must be performed.
(d) Secondary verification--(1) Manual search of INS records.
Secondary verification is a manual search by the INS of its records to
determine an individual's immigration status. The responsible entity
must request secondary verification, within 10 days of receiving the
results of the primary verification, if the primary verification system
does not confirm eligible immigration status, or if the primary
verification system verifies immigration status that is ineligible for
assistance under a Section 214 covered program.
(2) Secondary verification initiated by responsible entity.
Secondary verification is initiated by the responsible entity forwarding
photocopies of the original INS documents required for the immigration
status declared (front and back), attached to the INS document
verification request form G-845S (Document Verification Request), or
such other form specified by the INS to a designated INS office for
review. (Form G-845S is available from the local INS Office.)
(3) Failure of secondary verification to confirm eligible
immigration status. If the secondary verification does not confirm
eligible immigration status, the responsible entity shall issue to the
family the notice described in Sec. 5.514(d), which includes
notification of the right to appeal to the INS of the INS finding on
immigration status (see Sec. 5.514(d)(4)).
(e) Exemption from liability for INS verification. The responsible
entity shall not be liable for any action, delay, or failure of the INS
in conducting the automated or manual verification.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
Sec. 5.514 Delay, denial, reduction or termination of assistance.
(a) General. Assistance to a family may not be delayed, denied,
reduced or terminated because of the immigration status of a family
member except as provided in this section.
(b) Restrictions on delay, denial, reduction or termination of
assistance--(1) Restrictions on reduction, denial or termination of
assistance for applicants and tenants. Assistance to an applicant or
tenant shall not be delayed, denied, reduced, or terminated, on the
basis of ineligible immigration status of a family member if:
(i) The primary and secondary verification of any immigration
documents that were timely submitted has not been completed;
(ii) The family member for whom required evidence has not been
submitted has moved from the assisted dwelling unit;
(iii) The family member who is determined not to be in an eligible
immigration status following INS verification has moved from the
assisted dwelling unit;
(iv) The INS appeals process under Sec. 5.514(e) has not been
concluded;
(v) Assistance is prorated in accordance with Sec. 5.520; or
(vi) Assistance for a mixed family is continued in accordance with
Sec. Sec. 5.516 and 5.518; or
(vii) Deferral of termination of assistance is granted in accordance
with Sec. Sec. 5.516 and 5.518.
(2) Restrictions on delay, denial, reduction or termination of
assistance pending fair hearing for tenants. In addition to the factors
listed in paragraph (b)(1) of this section, assistance to a tenant
cannot be delayed, denied, reduced or terminated until the completion of
the informal hearing described in paragraph (f) of this section.
(c) Events causing denial or termination of assistance--(1) General.
Assistance to an applicant shall be denied, and a tenant's assistance
shall be terminated, in accordance with the procedures of this section,
upon the occurrence of any of the following events:
(i) Evidence of citizenship (i.e., the declaration) and eligible
immigration status is not submitted by the date
[[Page 87]]
specified in Sec. 5.508(g) or by the expiration of any extension
granted in accordance with Sec. 5.508(h);
(ii) Evidence of citizenship and eligible immigration status is
timely submitted, but INS primary and secondary verification does not
verify eligible immigration status of a family member; and
(A) The family does not pursue INS appeal or informal hearing rights
as provided in this section; or
(B) INS appeal and informal hearing rights are pursued, but the
final appeal or hearing decisions are decided against the family member;
or
(iii) The responsible entity determines that a family member has
knowingly permitted another individual who is not eligible for
assistance to reside (on a permanent basis) in the public or assisted
housing unit of the family member. Such termination shall be for a
period of not less than 24 months. This provision does not apply to a
family if the ineligibility of the ineligible individual was considered
in calculating any proration of assistance provided for the family.
(2) Termination of assisted occupancy. For termination of assisted
occupancy, see paragraph (i) of this section.
(d) Notice of denial or termination of assistance. The notice of
denial or termination of assistance shall advise the family:
(1) That financial assistance will be denied or terminated, and
provide a brief explanation of the reasons for the proposed denial or
termination of assistance;
(2) That the family may be eligible for proration of assistance as
provided under Sec. 5.520;
(3) In the case of a tenant, the criteria and procedures for
obtaining relief under the provisions for preservation of families in
Sec. Sec. 5.514 and 5.518;
(4) That the family has a right to request an appeal to the INS of
the results of secondary verification of immigration status and to
submit additional documentation or a written explanation in support of
the appeal in accordance with the procedures of paragraph (e) of this
section;
(5) That the family has a right to request an informal hearing with
the responsible entity either upon completion of the INS appeal or in
lieu of the INS appeal as provided in paragraph (f) of this section;
(6) For applicants, the notice shall advise that assistance may not
be delayed until the conclusion of the INS appeal process, but
assistance may be delayed during the pendency of the informal hearing
process.
(e) Appeal to the INS--(1) Submission of request for appeal. Upon
receipt of notification by the responsible entity that INS secondary
verification failed to confirm eligible immigration status, the
responsible entity shall notify the family of the results of the INS
verification, and the family shall have 30 days from the date of the
responsible entity's notification, to request an appeal of the INS
results. The request for appeal shall be made by the family
communicating that request in writing directly to the INS. The family
must provide the responsible entity with a copy of the written request
for appeal and proof of mailing.
(2) Documentation to be submitted as part of appeal to INS. The
family shall forward to the designated INS office any additional
documentation or written explanation in support of the appeal. This
material must include a copy of the INS document verification request
form G-845S (used to process the secondary verification request) or such
other form specified by the INS, and a cover letter indicating that the
family is requesting an appeal of the INS immigration status
verification results.
(3) Decision by INS--(i) When decision will be issued. The INS will
issue to the family, with a copy to the responsible entity, a decision
within 30 days of its receipt of documentation concerning the family's
appeal of the verification of immigration status. If, for any reason,
the INS is unable to issue a decision within the 30 day time period, the
INS will inform the family and responsible entity of the reasons for the
delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the responsible entity receives a copy of the INS
decision, the responsible entity shall notify the family of its right to
[[Page 88]]
request an informal hearing on the responsible entity's ineligibility
determination in accordance with the procedures of paragraph (f) of this
section.
(4) No delay, denial, reduction, or termination of assistance until
completion of INS appeal process; direct appeal to INS. Pending the
completion of the INS appeal under this section, assistance may not be
delayed, denied, reduced or terminated on the basis of immigration
status.
(f) Informal hearing--(1) When request for hearing is to be made.
After notification of the INS decision on appeal, or in lieu of request
of appeal to the INS, the family may request that the responsible entity
provide a hearing. This request must be made either within 30 days of
receipt of the notice described in paragraph (d) of this section, or
within 30 days of receipt of the INS appeal decision issued in
accordance with paragraph (e) of this section.
(2) Informal hearing procedures--(i) Tenants assisted under a
Section 8 covered program: For tenants assisted under a Section 8
covered program, the procedures for the hearing before the responsible
entity are set forth in:
(A) For Section 8 Moderate Rehabilitation assistance: 24 CFR part
882;
(B) For Section 8 tenant-based assistance: 24 CFR part 982; or
(C) For Section 8 project-based certificate program: 24 CFR part
983.
(ii) Tenants assisted under any other Section 8 covered program or a
Public Housing covered program: For tenants assisted under a Section 8
covered program not listed in paragraph (f)(3)(i) of this section or a
Public Housing covered program, the procedures for the hearing before
the responsible entity are set forth in 24 CFR part 966.
(iii) Families under Housing covered programs and applicants for
assistance under all covered programs. For all families under Housing
covered programs (applicants as well as tenants already receiving
assistance) and for applicants for assistance under all covered
programs, the procedures for the informal hearing before the responsible
entity are as follows:
(A) Hearing before an impartial individual. The family shall be
provided a hearing before any person(s) designated by the responsible
entity (including an officer or employee of the responsible entity),
other than a person who made or approved the decision under review, and
other than a person who is a subordinate of the person who made or
approved the decision;
(B) Examination of evidence. The family shall be provided the
opportunity to examine and copy at the individual's expense, at a
reasonable time in advance of the hearing, any documents in the
possession of the responsible entity pertaining to the family's
eligibility status, or in the possession of the INS (as permitted by INS
requirements), including any records and regulations that may be
relevant to the hearing;
(C) Presentation of evidence and arguments in support of eligible
status. The family shall be provided the opportunity to present evidence
and arguments in support of eligible status. Evidence may be considered
without regard to admissibility under the rules of evidence applicable
to judicial proceedings;
(D) Controverting evidence of the responsible entity. The family
shall be provided the opportunity to controvert evidence relied upon by
the responsible entity and to confront and cross-examine all witnesses
on whose testimony or information the responsible entity relies;
(E) Representation. The family shall be entitled to be represented
by an attorney, or other designee, at the family's expense, and to have
such person make statements on the family's behalf;
(F) Interpretive services. The family shall be entitled to arrange
for an interpreter to attend the hearing, at the expense of the family,
or responsible entity, as may be agreed upon by the two parties to the
proceeding; and
(G) Hearing to be recorded. The family shall be entitled to have the
hearing recorded by audiotape (a transcript of the hearing may, but is
not required to, be provided by the responsible entity).
(3) Hearing decision. The responsible entity shall provide the
family with a written final decision, based solely on the facts
presented at the hearing, within 14 days of the date of the informal
hearing. The decision shall state the basis for the decision.
[[Page 89]]
(g) Judicial relief. A decision against a family member, issued in
accordance with paragraphs (e) or (f) of this section, does not preclude
the family from exercising the right, that may otherwise be available,
to seek redress directly through judicial procedures.
(h) Retention of documents. The responsible entity shall retain for
a minimum of 5 years the following documents that may have been
submitted to the responsible entity by the family, or provided to the
responsible entity as part of the INS appeal or the informal hearing
process:
(1) The application for financial assistance;
(2) The form completed by the family for income reexamination;
(3) Photocopies of any original documents (front and back),
including original INS documents;
(4) The signed verification consent form;
(5) The INS verification results;
(6) The request for an INS appeal;
(7) The final INS determination;
(8) The request for an informal hearing; and
(9) The final informal hearing decision.
(i) Termination of assisted occupancy. (1) Under Housing covered
programs, and in the Section 8 covered programs other than the Section 8
Rental Certificate, Rental Voucher, and Moderate Rehabilitation
programs, assisted occupancy is terminated by:
(i) If permitted under the lease, the responsible entity notifying
the tenant that because of the termination of assisted occupancy the
tenant is required to pay the HUD-approved market rent for the dwelling
unit.
(ii) The responsible entity and tenant entering into a new lease
without financial assistance.
(iii) The responsible entity evicting the tenant. While the tenant
continues in occupancy of the unit, the responsible entity may continue
to receive assistance payments if action to terminate the tenancy under
an assisted lease is promptly initiated and diligently pursued, in
accordance with the terms of the lease, and if eviction of the tenant is
undertaken by judicial action pursuant to State and local law. Action by
the responsible entity to terminate the tenancy and to evict the tenant
must be in accordance with applicable HUD regulations and other HUD
requirements. For any jurisdiction, HUD may prescribe a maximum period
during which assistance payments may be continued during eviction
proceedings and may prescribe other standards of reasonable diligence
for the prosecution of eviction proceedings.
(2) In the Section 8 Rental Certificate, Rental Voucher, and
Moderate Rehabilitation programs, assisted occupancy is terminated by
terminating assistance payments. (See provisions of this section
concerning termination of assistance.) The PHA shall not make any
additional assistance payments to the owner after the required
procedures specified in this section have been completed. In addition,
the PHA shall not approve a lease, enter into an assistance contract, or
process a portability move for the family after those procedures have
been completed.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
Sec. 5.516 Availability of preservation assistance to mixed families
and other families.
(a) Assistance available for tenant mixed families--(1) General.
Preservation assistance is available to tenant mixed families, following
completion of the appeals and informal hearing procedures provided in
Sec. 5.514. There are three types of preservation assistance:
(i) Continued assistance (see paragraph (a) of Sec. 5.518);
(ii) Temporary deferral of termination of assistance (see paragraph
(b) of Sec. 5.518); or
(iii) Prorated assistance (see Sec. 5.520, a mixed family must be
provided prorated assistance if the family so requests).
(2) Availability of assistance--(i) For Housing covered programs:
One of the three types of assistance described is available to tenant
mixed families assisted under a National Housing Act or 1965 HUD Act
covered program, depending upon the family's eligibility for such
assistance. Continued assistance must be provided to a mixed family
[[Page 90]]
that meets the conditions for eligibility for continued assistance.
(ii) For Section 8 or Public Housing covered programs. One of the
three types of assistance described may be available to tenant mixed
families assisted under a Section 8 or Public Housing covered program.
(b) Assistance available for applicant mixed families. Prorated
assistance is also available for mixed families applying for assistance
as provided in Sec. 5.520.
(c) Assistance available to other families in occupancy. Temporary
deferral of termination of assistance may be available to families
receiving assistance under a Section 214 covered program on June 19,
1995, and who have no members with eligible immigration status, as set
forth in paragraphs (c)(1) and (2) of this section.
(1) For Housing covered programs: Temporary deferral of termination
of assistance is available to families assisted under a Housing covered
program.
(2) For Section 8 or Public Housing covered programs: The
responsible entity may make temporary deferral of termination of
assistance to families assisted under a Section 8 or Public Housing
covered program.
(d) Section 8 covered programs: Discretion afforded to provide
certain family preservation assistance--(1) Project owners. With respect
to assistance under a Section 8 Act covered program administered by a
project owner, HUD has the discretion to determine under what
circumstances families are to be provided one of the two statutory forms
of assistance for preservation of the family (continued assistance or
temporary deferral of assistance). HUD is exercising its discretion by
specifying the standards in this section under which a project owner
must provide one of these two types of assistance to a family. However,
project owners and PHAs must offer prorated assistance to eligible mixed
families.
(2) PHAs. The PHA, rather than HUD, has the discretion to determine
the circumstances under which a family will be offered one of the two
statutory forms of assistance (continued assistance or temporary
deferral of termination of assistance). The PHA must establish its own
policy and criteria to follow in making its decision. In establishing
the criteria for granting continued assistance or temporary deferral of
termination of assistance, the PHA must incorporate the statutory
criteria, which are set forth in paragraphs (a) and (b) of Sec. 5.518.
However, the PHA must offer prorated assistance to eligible families.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25732, May 12, 1999]
Sec. 5.518 Types of preservation assistance available to mixed
families and other families.
(a) Continued assistance--(1) General. A mixed family may receive
continued housing assistance if all of the following conditions are met
(a mixed family assisted under a Housing covered program must be
provided continued assistance if the family meets the following
conditions):
(i) The family was receiving assistance under a Section 214 covered
program on June 19, 1995;
(ii) The family's head of household or spouse has eligible
immigration status as described in Sec. 5.506; and
(iii) The family does not include any person (who does not have
eligible immigration status) other than the head of household, any
spouse of the head of household, any parents of the head of household,
any parents of the spouse, or any children of the head of household or
spouse.
(2) Proration of continued assistance. A family entitled to
continued assistance before November 29, 1996 is entitled to continued
assistance as described in paragraph (a) of this section. A family
entitled to continued assistance after November 29, 1996 shall receive
prorated assistance as described in Sec. 5.520.
(b) Temporary deferral of termination of assistance--(1) Eligibility
for this type of assistance. If a mixed family qualifies for prorated
assistance (and does not qualify for continued assistance), but decides
not to accept prorated assistance, or if a family has no members with
eligible immigration status, the family may be eligible for temporary
deferral of termination of assistance if necessary to permit the family
additional time for the orderly transition
[[Page 91]]
of those family members with ineligible status, and any other family
members involved, to other affordable housing. Other affordable housing
is used in the context of transition of an ineligible family from a rent
level that reflects HUD assistance to a rent level that is unassisted;
the term refers to housing that is not substandard, that is of
appropriate size for the family and that can be rented for an amount not
exceeding the amount that the family pays for rent, including utilities,
plus 25 percent.
(2) Housing covered programs: Conditions for granting temporary
deferral of termination of assistance. The responsible entity shall
grant a temporary deferral of termination of assistance to a mixed
family if the family is assisted under a Housing covered program and one
of the following conditions is met:
(i) The family demonstrates that reasonable efforts to find other
affordable housing of appropriate size have been unsuccessful (for
purposes of this section, reasonable efforts include seeking information
from, and pursuing leads obtained from the State housing agency, the
city government, local newspapers, rental agencies and the owner);
(ii) The vacancy rate for affordable housing of appropriate size is
below five percent in the housing market for the area in which the
project is located; or
(iii) The consolidated plan, as described in 24 CFR part 91 and if
applicable to the covered program, indicates that the local
jurisdiction's housing market lacks sufficient affordable housing
opportunities for households having a size and income similar to the
family seeking the deferral.
(3) Time limit on deferral period. If temporary deferral of
termination of assistance is granted, the deferral period shall be for
an initial period not to exceed six months. The initial period may be
renewed for additional periods of six months, but the aggregate deferral
period for deferrals provided after November 29, 1996 shall not exceed a
period of eighteen months. The aggregate deferral period for deferrals
granted prior to November 29, 1996 shall not exceed 3 years. These time
periods do not apply to a family which includes a refugee under section
207 of the Immigration and Nationality Act or an individual seeking
asylum under section 208 of that Act.
(4) Notification requirements for beginning of each deferral period.
At the beginning of each deferral period, the responsible entity must
inform the family of its ineligibility for financial assistance and
offer the family information concerning, and referrals to assist in
finding, other affordable housing.
(5) Determination of availability of affordable housing at end of
each deferral period. (i) Before the end of each deferral period, the
responsible entity must satisfy the applicable requirements of either
paragraph (b)(5)(i)(A) or (B) of this section. Specifically, the
responsible entity must:
(A) For Housing covered programs: Make a determination that one of
the two conditions specified in paragraph (b)(2) of this section
continues to be met (note: affordable housing will be determined to be
available if the vacancy rate is five percent or greater), the owner's
knowledge and the tenant's evidence indicate that other affordable
housing is available; or
(B) For Section 8 or Public Housing covered programs: Make a
determination of the availability of affordable housing of appropriate
size based on evidence of conditions which when taken together will
demonstrate an inadequate supply of affordable housing for the area in
which the project is located, the consolidated plan (if applicable, as
described in 24 CFR part 91), the responsible entity's own knowledge of
the availability of affordable housing, and on evidence of the tenant
family's efforts to locate such housing.
(ii) The responsible entity must also:
(A) Notify the tenant family in writing, at least 60 days in advance
of the expiration of the deferral period, that termination will be
deferred again (provided that the granting of another deferral will not
result in aggregate deferral periods that exceeds the maximum deferral
period). This time period does not apply to a family which includes a
refugee under section 207 of the Immigration and Nationality Act or an
individual seeking asylum under section 208 of that Act, and a
determination was made that other affordable housing is not available;
or
[[Page 92]]
(B) Notify the tenant family in writing, at least 60 days in advance
of the expiration of the deferral period, that termination of financial
assistance will not be deferred because either granting another deferral
will result in aggregate deferral periods that exceed the maximum
deferral period (unless the family includes a refugee under section 207
of the Immigration and Nationality Act or an individual seeking asylum
under section 208 of that Act), or a determination has been made that
other affordable housing is available.
(c) Option to select proration of assistance at end of deferral
period. A family who is eligible for, and receives temporary deferral of
termination of assistance, may request, and the responsible entity shall
provide proration of assistance at the end of the deferral period if the
family has made a good faith effort during the deferral period to locate
other affordable housing.
(d) Notification of decision on family preservation assistance. A
responsible entity shall notify the family of its decision concerning
the family's qualification for family preservation assistance. If the
family is ineligible for family preservation assistance, the
notification shall state the reasons, which must be based on relevant
factors. For tenant families, the notice also shall inform the family of
any applicable appeal rights.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25732, May 12, 1999]
Sec. 5.520 Proration of assistance.
(a) Applicability. This section applies to a mixed family other than
a family receiving continued assistance, or other than a family who is
eligible for and requests and receives temporary deferral of termination
of assistance. An eligible mixed family who requests prorated assistance
must be provided prorated assistance.
(b) Method of prorating assistance for Housing covered programs--(1)
Proration under Rent Supplement Program. If the household participates
in the Rent Supplement Program, the rent supplement paid on the
household's behalf shall be the rent supplement the household would
otherwise be entitled to, multiplied by a fraction, the denominator of
which is the number of people in the household and the numerator of
which is the number of eligible persons in the household;
(2) Proration under Section 235 Program. If the household
participates in the Section 235 Program, the interest reduction payments
paid on the household's behalf shall be the payments the household would
otherwise be entitled to, multiplied by a fraction the denominator of
which is the number of people in the household and the numerator of
which is the number of eligible persons in the household;
(3) Proration under Section 236 Program without the benefit of
additional assistance. If the household participates in the Section 236
Program without the benefit of any additional assistance, the
household's rent shall be increased above the rent the household would
otherwise pay by an amount equal to the difference between the market
rate rent for the unit and the rent the household would otherwise pay
multiplied by a fraction the denominator of which is the number of
people in the household and the numerator of which is the number of
ineligible persons in the household;
(4) Proration under Section 236 Program with the benefit of
additional assistance. If the household participates in the Section 236
Program with the benefit of additional assistance under the rent
supplement, rental assistance payment or Section 8 programs, the
household's rent shall be increased above the rent the household would
otherwise pay by:
(i) An amount equal to the difference between the market rate rent
for the unit and the basic rent for the unit multiplied by a fraction,
the denominator of which is the number of people in the household, and
the numerator of which is the number of ineligible persons in the
household, plus;
(ii) An amount equal to the rent supplement, housing assistance
payment or rental assistance payment the household would otherwise be
entitled to multiplied by a fraction, the denominator of which is the
number of people in the household and the numerator of which is the
number of ineligible persons in the household.
(c) Method of prorating assistance for Section 8 covered programs--
(1) Section 8
[[Page 93]]
assistance other than assistance provided for a tenancy under the
Section 8 Housing Choice Voucher Program. For Section 8 assistance other
than assistance for a tenancy under the voucher program, the PHA must
prorate the family's assistance as follows:
(i) Step 1. Determine gross rent for the unit. (Gross rent is
contract rent plus any allowance for tenant paid utilities).
(ii) Step 2. Determine total tenant payment in accordance with
section 5.613(a). (Annual income includes income of all family members,
including any family member who has not established eligible immigration
status.)
(iii) Step 3. Subtract amount determined in paragraph (c)(1)(ii),
(Step 2), from amount determined in paragraph (c)(1)(i), (Step 1).
(iv) Step 4. Multiply the amount determined in paragraph
(c)(1)(iii), (Step 3) by a fraction for which:
(A) The numerator is the number of family members who have
established eligible immigration status; and
(B) The denominator is the total number of family members.
(v) Prorated housing assistance. The amount determined in paragraph
(c)(1)(iv) (Step 4) is the prorated housing assistance payment for a
mixed family.
(vi) No effect on contract rent. Proration of the housing assistance
payment does not affect contract rent to the owner. The family must pay
as rent the portion of contract rent not covered by the prorated housing
assistance payment.
(2) Assistance for a Section 8 voucher tenancy. For a tenancy under
the voucher program, the PHA must prorate the family's assistance as
follows:
(i) Step 1. Determine the amount of the pre-proration housing
assistance payment. (Annual income includes income of all family
members, including any family member who has not established eligible
immigration status.)
(ii) Step 2. Multiply the amount determined in paragraph (c)(2)(i)
(Step 1) by a fraction for which:
(A) The numerator is the number of family members who have
established eligible immigration status; and
(B) The denominator is the total number of family members.
(iii) Prorated housing assistance. The amount determined in
paragraph (c)(2)(ii) (Step 2) is the prorated housing assistance payment
for a mixed family.
(iv) No effect on rent to owner. Proration of the housing assistance
payment does not affect rent to owner. The family must pay the portion
of rent to owner not covered by the prorated housing assistance payment.
(d) Method of prorating assistance for Public Housing covered
programs. (1) The PHA must prorate the family's assistance as follows:
(i) Step 1. Determine the total tenant payment in accordance with
section 5.628. (Annual income includes income of all family members,
including any family member who has not established eligible immigration
status.)
(ii) Step 2. Subtract the total tenant payment from the PHA-
established flat rent applicable to the unit. The result is the maximum
subsidy for which the family could qualify if all members were eligible
(``family maximum subsidy'').
(iii) Step 3. Divide the family maximum subsidy by the number of
persons in the family (all persons) to determine the maximum subsidy per
each family member who has citizenship or eligible immigration status
(``eligible family member''). The subsidy per eligible family member is
the ``member maximum subsidy.''
(iv) Step 4. Multiply the member maximum subsidy by the number of
family members who have citizenship or eligible immigration status
(``eligible family members'').
(2) The product of steps 1 through 4 of paragraphs (d)(1)(i) through
(iv) of this section is the amount of subsidy for which the family is
eligible (``eligible subsidy''). The family's rent is the PHA-
established flat rent minus the amount of the eligible subsidy.
(e) Method of prorating assistance when the mixed family's total
tenant payment (TTP) is greater than the public housing flat rent. When
the mixed family's TTP is greater than the flat rent, the PHA must use
the TTP as the mixed family TTP. The PHA subtracts from the
[[Page 94]]
mixed family TTP any established utility allowance, and the sum becomes
the mixed family rent.
[61 FR 5202, Feb. 9, 1996, as amended at 63 FR 23853, Apr. 30, 1998; 64
FR 13056, Mar. 16, 1999; 81 FR 12370, Mar. 8, 2016]
Sec. 5.522 Prohibition of assistance to noncitizen students.
(a) General. The provisions of Sec. Sec. 5.516 and 5.518 permitting
continued assistance or temporary deferral of termination of assistance
for certain families do not apply to any person who is determined to be
a noncitizen student as in paragraph (c)(2)(A) of Section 214 (42 U.S.C.
1436a(c)(2)(A)). The family of a noncitizen student may be eligible for
prorated assistance, as provided in paragraph (b)(2) of this section.
(b) Family of noncitizen students. (1) The prohibition on providing
assistance to a noncitizen student as described in paragraph (a) of this
section extends to the noncitizen spouse of the noncitizen student and
minor children accompanying the student or following to join the
student.
(2) The prohibition on providing assistance to a noncitizen student
does not extend to the citizen spouse of the noncitizen student and the
children of the citizen spouse and noncitizen student.
Sec. 5.524 Compliance with nondiscrimination requirements.
The responsible entity shall administer the restrictions on use of
assisted housing by noncitizens with ineligible immigration status
imposed by this part in conformity with all applicable nondiscrimination
and equal opportunity requirements, including, but not limited to, title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-5) and the
implementing regulations in 24 CFR part 1, section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794) and the implementing
regulations in 24 CFR part 8, the Fair Housing Act (42 U.S.C. 3601-3619)
and the implementing regulations in 24 CFR part 100.
Sec. 5.526 Protection from liability for responsible entities and
State and local government agencies and officials.
(a) Protection from liability for responsible entities. Responsible
entities are protected from liability as set forth in Section 214(e) (42
U.S.C 1436a(e)).
(b) Protection from liability for State and local government
agencies and officials. State and local government agencies and
officials shall not be liable for the design or implementation of the
verification system described in Sec. 5.512, as long as the
implementation by the State and local government agency or official is
in accordance with prescribed HUD rules and requirements.
[64 FR 25732, May 12, 1999]
Sec. 5.528 Liability of ineligible tenants for reimbursement of benefits.
Where a tenant has received the benefit of HUD financial assistance
to which the tenant was not entitled because the tenant intentionally
misrepresented eligible status, the ineligible tenant is responsible for
reimbursing HUD for the assistance improperly paid. If the amount of the
assistance is substantial, the responsible entity is encouraged to refer
the case to the HUD Inspector General's office for further
investigation. Possible criminal prosecution may follow based on the
False Statements Act (18 U.S.C. 1001 and 1010).
Subpart F_Section 8 and Public Housing, and Other HUD Assisted Housing
Serving Persons with Disabilities: Family Income and Family Payment;
Occupancy Requirements for Section 8 Project-Based Assistance
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, and 3535(d).
Source: 61 FR 54498, Oct. 18, 1996, unless otherwise noted.
Sec. 5.601 Purpose and applicability.
This subpart states HUD requirements on the following subjects:
[[Page 95]]
(a) Determining annual and adjusted income of families who apply for
or receive assistance in the Section 8 (tenant-based and project-based)
and public housing programs;
(b) Determining payments by and utility reimbursements to families
assisted in these programs;
(c) Additional occupancy requirements that apply to the Section 8
project-based assistance programs. These additional requirements
concern:
(1) Income-eligibility and income-targeting when a Section 8 owner
admits families to a Section 8 project or unit;
(2) Owner selection preferences; and
(3) Owner reexamination of family income and composition;
(d) Determining adjusted income, as provided in Sec. 5.611(a) and
(b), for families who apply for or receive assistance under the
following programs: HOME Investment Partnerships Program (24 CFR part
92); Rent Supplement Payments Program (24 CFR part 200, subpart W);
Rental Assistance Payments Program (24 CFR part 236, subpart D); Housing
Opportunities for Persons with AIDS (24 CFR part 574); Shelter Plus Care
Program (24 CFR part 582); Supportive Housing Program (McKinney Act
Homeless Assistance) (24 CFR part 583); Section 202 Supportive Housing
Program for the Elderly (24 CFR 891, subpart B); Section 202 Direct
Loans for Housing for the Elderly and Persons with Disabilities (24 CFR
part 891, subpart E) and the Section 811 Supportive Housing for Persons
with Disabilities (24 CFR part 891, subpart C). Unless specified in the
regulations for each of the programs listed in paragraph (d) of this
section or in another regulatory section of this part 5, subpart F, the
regulations in part 5, subpart F, generally are not applicable to these
programs; and
(e) Determining earned income disregard for persons with
disabilities, as provided in Sec. 5.617, for the following programs:
HOME Investment Partnerships Program (24 CFR part 92); Housing
Opportunities for Persons with AIDS (24 CFR part 574); Supportive
Housing Program (McKinney Act Homeless Assistance) (24 CFR part 583);
and the Housing Choice Voucher Program (24 CFR part 982).
[66 FR 6222, Jan. 19, 2001]
Sec. 5.603 Definitions.
As used in this subpart:
(a) Terms found elsewhere in part 5--(1) Subpart A. The terms 1937
Act, elderly person, public housing, public housing agency (PHA),
responsible entity and Section 8 are defined in Sec. 5.100.
(2) Subpart D. The terms ``disabled family'', ``elderly family'',
``family'', ``live-in aide'', and ``person with disabilities'' are
defined in Sec. 5.403.
(b) The following terms shall have the meanings set forth below:
Adjusted income. See Sec. 5.611.
Annual income. See Sec. 5.609.
Child care expenses. Amounts anticipated to be paid by the family
for the care of children under 13 years of age during the period for
which annual income is computed, but only where such care is necessary
to enable a family member to actively seek employment, be gainfully
employed, or to further his or her education and only to the extent such
amounts are not reimbursed. The amount deducted shall reflect reasonable
charges for child care. In the case of child care necessary to permit
employment, the amount deducted shall not exceed the amount of
employment income that is included in annual income.
Dependent. A member of the family (except foster children and foster
adults) other than the family head or spouse, who is under 18 years of
age, or is a person with a disability, or is a full-time student.
Disability assistance expenses. Reasonable expenses that are
anticipated, during the period for which annual income is computed, for
attendant care and auxiliary apparatus for a disabled family member and
that are necessary to enable a family member (including the disabled
member) to be employed, provided that the expenses are neither paid to a
member of the family nor reimbursed by an outside source.
Economic self-sufficiency program. Any program designed to
encourage, assist, train, or facilitate the economic independence of
HUD-assisted families or to provide work for such families. These
programs include programs for
[[Page 96]]
job training, employment counseling, work placement, basic skills
training, education, English proficiency, workfare, financial or
household management, apprenticeship, and any program necessary to ready
a participant for work (including a substance abuse or mental health
treatment program), or other work activities.
Extremely low-income family. A very low-income family whose annual
income does not exceed the higher of:
(1) The poverty guidelines established by the Department of Health
and Human Services applicable to the family of the size involved (except
in the case of families living in Puerto Rico or any other territory or
possession of the United States); or
(2) Thirty (30) percent of the median income for the area, as
determined by HUD, with adjustments for smaller and larger families,
except that HUD may establish income ceilings higher or lower than 30
percent of the area median income for the area if HUD finds that such
variations are necessary because of unusually high or low family
incomes.
Full-time student. A person who is attending school or vocational
training on a full-time basis.
Imputed welfare income. See Sec. 5.615.
Low income family. 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, except that HUD may
establish income ceilings higher or lower than 80 percent of the median
income for the area on the basis of HUD's findings that such variations
are necessary because of unusually high or low family incomes.
Medical expenses. Medical expenses, including medical insurance
premiums, that are anticipated during the period for which annual income
is computed, and that are not covered by insurance.
Monthly adjusted income. One twelfth of adjusted income.
Monthly income. One twelfth of annual income.
Net family assets. (1) Net cash value after deducting reasonable
costs that would be incurred in disposing of real property, savings,
stocks, bonds, and other forms of capital investment, excluding
interests in Indian trust land and excluding equity accounts in HUD
homeownership programs. The value of necessary items of personal
property such as furniture and automobiles shall be excluded.
(2) In cases where a trust fund has been established and the trust
is not revocable by, or under the control of, any member of the family
or household, the value of the trust fund will not be considered an
asset so long as the fund continues to be held in trust. Any income
distributed from the trust fund shall be counted when determining annual
income under Sec. 5.609.
(3) In determining net family assets, PHAs or owners, as applicable,
shall include the value of any business or family assets disposed of by
an applicant or tenant for less than fair market value (including a
disposition in trust, but not in a foreclosure or bankruptcy sale)
during the two years preceding the date of application for the program
or reexamination, as applicable, in excess of the consideration received
therefor. In the case of a disposition as part of a separation or
divorce settlement, the disposition will not be considered to be for
less than fair market value if the applicant or tenant receives
important consideration not measurable in dollar terms.
(4) For purposes of determining annual income under Sec. 5.609, the
term ``net family assets'' does not include the value of a home
currently being purchased with assistance under part 982, subpart M of
this title. This exclusion is limited to the first 10 years after the
purchase date of the home.
Owner has the meaning provided in the relevant program regulations.
As used in this subpart, where appropriate, the term ``owner'' shall
also include a ``borrower'' as defined in part 891 of this title.
Responsible entity. For Sec. 5.611, in addition to the definition
of ``responsible entity'' in Sec. 5.100, and for Sec. 5.617, in
addition to only that part of the definition of ``responsible entity''
in Sec. 5.100 which addresses the Section 8 program covered by Sec.
5.617 (public housing is not covered by Sec. 5.617), ``responsible
entity'' means:
(1) For the HOME Investment Partnerships Program, the participating
jurisdiction, as defined in 24 CFR 92.2;
[[Page 97]]
(2) For the Rent Supplement Payments Program, the owner of the
multifamily project;
(3) For the Rental Assistance Payments Program, the owner of the
Section 236 project;
(4) For the Housing Opportunities for Persons with AIDS (HOPWA)
program, the applicable ``State'' or ``unit of general local
government'' or ``nonprofit organization'' as these terms are defined in
24 CFR 574.3, that administers the HOPWA Program;
(5) For the Shelter Plus Care Program, the ``Recipient'' as defined
in 24 CFR 582.5;
(6) For the Supportive Housing Program, the ``recipient'' as defined
in 24 CFR 583.5;
(7) For the Section 202 Supportive Housing Program for the Elderly,
the ``Owner'' as defined in 24 CFR 891.205;
(8) For the Section 202 Direct Loans for Housing for the Elderly and
Persons with Disabilities), the ``Borrower'' as defined in 24 CFR
891.505; and
(9) For the Section 811 Supportive Housing Program for Persons with
Disabilities, the ``owner'' as defined in 24 CFR 891.305.
Tenant rent. The amount payable monthly by the family as rent to the
unit owner (Section 8 owner or PHA in public housing). (This term is not
used in the Section 8 voucher program.)
Total tenant payment. See Sec. 5.628.
Utility allowance. If the cost of utilities (except telephone) and
other housing services for an assisted unit is not included in the
tenant rent but is the responsibility of the family occupying the unit,
an amount equal to the estimate made or approved by a PHA or HUD of the
monthly cost of a reasonable consumption of such utilities and other
services for the unit by an energy-conservative household of modest
circumstances consistent with the requirements of a safe, sanitary, and
healthful living environment.
Utility reimbursement. The amount, if any, by which the utility
allowance for a unit, if applicable, exceeds the total tenant payment
for the family occupying the unit. (This definition is not used in the
Section 8 voucher program, or for a public housing family that is paying
a flat rent.)
Very low income family. A family whose annual income does not exceed
50 percent of the median family income for the area, as determined by
HUD with adjustments for smaller and larger families, except that HUD
may establish income ceilings higher or lower than 50 percent of the
median income for the area if HUD finds that such variations are
necessary because of unusually high or low family incomes.
Welfare assistance. Welfare or other payments to families or
individuals, based on need, that are made under programs funded,
separately or jointly, by Federal, State or local governments (including
assistance provided under the Temporary Assistance for Needy Families
(TANF) program, as that term is defined under the implementing
regulations issued by the Department of Health and Human Services at 45
CFR 260.31).
Work activities. See definition at section 407(d) of the Social
Security Act (42 U.S.C. 607(d)).
[61 FR 54498, Oct. 18, 1996, as amended at 65 FR 16716, Mar. 29, 2000;
65 FR 55161, Sept. 12, 2000; 66 FR 6223, Jan. 19, 2001; 67 FR 47432,
July 18, 2002; 81 FR 12370, Mar. 8, 2016]
Family Income
Sec. 5.609 Annual income.
(a) Annual income means all amounts, monetary or not, which:
(1) Go to, or on behalf of, the family head or spouse (even if
temporarily absent) or to any other family member; or
(2) Are anticipated to be received from a source outside the family
during the 12-month period following admission or annual reexamination
effective date; and
(3) Which are not specifically excluded in paragraph (c) of this
section.
(4) Annual income also means amounts derived (during the 12-month
period) from assets to which any member of the family has access.
(b) Annual income includes, but is not limited to:
(1) The full amount, before any payroll deductions, of wages and
salaries, overtime pay, commissions, fees, tips and bonuses, and other
compensation for personal services;
[[Page 98]]
(2) The net income from the operation of a business or profession.
Expenditures for business expansion or amortization of capital
indebtedness shall not be used as deductions in determining net income.
An allowance for depreciation of assets used in a business or profession
may be deducted, based on straight line depreciation, as provided in
Internal Revenue Service regulations. Any withdrawal of cash or assets
from the operation of a business or profession will be included in
income, except to the extent the withdrawal is reimbursement of cash or
assets invested in the operation by the family;
(3) Interest, dividends, and other net income of any kind from real
or personal property. Expenditures for amortization of capital
indebtedness shall not be used as deductions in determining net income.
An allowance for depreciation is permitted only as authorized in
paragraph (b)(2) of this section. Any withdrawal of cash or assets from
an investment will be included in income, except to the extent the
withdrawal is reimbursement of cash or assets invested by the family.
Where the family has net family assets in excess of $5,000, annual
income shall include the greater of the actual income derived from all
net family assets or a percentage of the value of such assets based on
the current passbook savings rate, as determined by HUD;
(4) The full amount of periodic amounts received from Social
Security, annuities, insurance policies, retirement funds, pensions,
disability or death benefits, and other similar types of periodic
receipts, including a lump-sum amount or prospective monthly amounts for
the delayed start of a periodic amount (except as provided in paragraph
(c)(14) of this section);
(5) Payments in lieu of earnings, such as unemployment and
disability compensation, worker's compensation and severance pay (except
as provided in paragraph (c)(3) of this section);
(6) Welfare assistance payments. (i) Welfare assistance payments
made under the Temporary Assistance for Needy Families (TANF) program
are included in annual income only to the extent such payments:
(A) Qualify as assistance under the TANF program definition at 45
CFR 260.31; and
(B) Are not otherwise excluded under paragraph (c) of this section.
(ii) If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the
actual cost of shelter and utilities, the amount of welfare assistance
income to be included as income shall consist of:
(A) The amount of the allowance or grant exclusive of the amount
specifically designated for shelter or utilities; plus
(B) The maximum amount that the welfare assistance agency could in
fact allow the family for shelter and utilities. If the family's welfare
assistance is ratably reduced from the standard of need by applying a
percentage, the amount calculated under this paragraph shall be the
amount resulting from one application of the percentage.
(7) Periodic and determinable allowances, such as alimony and child
support payments, and regular contributions or gifts received from
organizations or from persons not residing in the dwelling;
(8) All regular pay, special pay and allowances of a member of the
Armed Forces (except as provided in paragraph (c)(7) of this section).
(9) For section 8 programs only and as provided in 24 CFR 5.612, any
financial assistance, in excess of amounts received for tuition and any
other required fees and charges, that an individual receives under the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.), from private
sources, or from an institution of higher education (as defined under
the Higher Education Act of 1965 (20 U.S.C. 1002)), shall be considered
income to that individual, except that financial assistance described in
this paragraph is not considered annual income for persons over the age
of 23 with dependent children. For purposes of this paragraph,
``financial assistance'' does not include loan proceeds for the purpose
of determining income.
(c) Annual income does not include the following:
[[Page 99]]
(1) Income from employment of children (including foster children)
under the age of 18 years;
(2) Payments received for the care of foster children or foster
adults (usually persons with disabilities, unrelated to the tenant
family, who are unable to live alone);
(3) Lump-sum additions to family assets, such as inheritances,
insurance payments (including payments under health and accident
insurance and worker's compensation), capital gains and settlement for
personal or property losses (except as provided in paragraph (b)(5) of
this section);
(4) Amounts received by the family that are specifically for, or in
reimbursement of, the cost of medical expenses for any family member;
(5) Income of a live-in aide, as defined in Sec. 5.403;
(6) Subject to paragraph (b)(9) of this section, the full amount of
student financial assistance paid directly to the student or to the
educational institution;
(7) The special pay to a family member serving in the Armed Forces
who is exposed to hostile fire;
(8)(i) Amounts received under training programs funded by HUD;
(ii) Amounts received by a person with a disability that are
disregarded for a limited time for purposes of Supplemental Security
Income eligibility and benefits because they are set aside for use under
a Plan to Attain Self-Sufficiency (PASS);
(iii) Amounts received by a participant in other publicly assisted
programs which are specifically for or in reimbursement of out-of-pocket
expenses incurred (special equipment, clothing, transportation, child
care, etc.) and which are made solely to allow participation in a
specific program;
(iv) Amounts received under a resident service stipend. A resident
service stipend is a modest amount (not to exceed $200 per month)
received by a resident for performing a service for the PHA or owner, on
a part-time basis, that enhances the quality of life in the development.
Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, resident initiatives coordination, and
serving as a member of the PHA's governing board. No resident may
receive more than one such stipend during the same period of time;
(v) Incremental earnings and benefits resulting to any family member
from participation in qualifying State or local employment training
programs (including training programs not affiliated with a local
government) and training of a family member as resident management
staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives,
and are excluded only for the period during which the family member
participates in the employment training program;
(9) Temporary, nonrecurring or sporadic income (including gifts);
(10) Reparation payments paid by a foreign government pursuant to
claims filed under the laws of that government by persons who were
persecuted during the Nazi era;
(11) Earnings in excess of $480 for each full-time student 18 years
old or older (excluding the head of household and spouse);
(12) Adoption assistance payments in excess of $480 per adopted
child;
(13) [Reserved]
(14) Deferred periodic amounts from supplemental security income and
Social Security benefits that are received in a lump sum amount or in
prospective monthly amounts, or any deferred Department of Veterans
Affairs disability benefits that are received in a lump sum amount or in
prospective monthly amounts.
(15) Amounts received by the family in the form of refunds or
rebates under State or local law for property taxes paid on the dwelling
unit;
(16) Amounts paid by a State agency to a family with a member who
has a developmental disability and is living at home to offset the cost
of services and equipment needed to keep the developmentally disabled
family member at home; or
(17) Amounts specifically excluded by any other Federal statute from
consideration as income for purposes of determining eligibility or
benefits under a category of assistance programs that includes
assistance under any program
[[Page 100]]
to which the exclusions set forth in 24 CFR 5.609(c) apply. A notice
will be published in the Federal Register and distributed to PHAs and
housing owners identifying the benefits that qualify for this exclusion.
Updates will be published and distributed when necessary.
(d) Annualization of income. If it is not feasible to anticipate a
level of income over a 12-month period (e.g., seasonal or cyclic
income), or the PHA believes that past income is the best available
indicator of expected future income, the PHA may annualize the income
anticipated for a shorter period, subject to a redetermination at the
end of the shorter period.
[61 FR 54498, Oct. 18, 1996, as amended at 65 FR 16716, Mar. 29, 2000;
67 FR 47432, July 18, 2002; 70 FR 77743, Dec. 30, 2005; 79 FR 36164,
June 25, 2014; 81 FR 12370, Mar. 8, 2016]
Sec. 5.611 Adjusted income.
Adjusted income means annual income (as determined by the
responsible entity, defined in Sec. 5.100 and Sec. 5.603) of the
members of the family residing or intending to reside in the dwelling
unit, after making the following deductions:
(a) Mandatory deductions. In determining adjusted income, the
responsible entity must deduct the following amounts from annual income:
(1) $480 for each dependent;
(2) $400 for any elderly family or disabled family;
(3) The sum of the following, to the extent the sum exceeds three
percent of annual income:
(i) Unreimbursed medical expenses of any elderly family or disabled
family; and
(ii) Unreimbursed reasonable attendant care and auxiliary apparatus
expenses for each member of the family who is a person with
disabilities, to the extent necessary to enable any member of the family
(including the member who is a person with disabilities) to be employed.
This deduction may not exceed the earned income received by family
members who are 18 years of age or older and who are able to work
because of such attendant care or auxiliary apparatus; and
(4) Any reasonable child care expenses necessary to enable a member
of the family to be employed or to further his or her education.
(b) Additional deductions. (1) For public housing, a PHA may adopt
additional deductions from annual income. The PHA must establish a
written policy for such deductions.
(2) For the HUD programs listed in Sec. 5.601(d), the responsible
entity shall calculate such other deductions as required and permitted
by the applicable program regulations.
[66 FR 6223, Jan. 19, 2001]
Sec. 5.612 Restrictions on assistance to students enrolled in an
institution of higher education.
No assistance shall be provided under section 8 of the 1937 Act to
any individual who:
(a) Is enrolled as a student at an institution of higher education,
as defined under section 102 of the Higher Education Act of 1965 (20
U.S.C. 1002);
(b) Is under 24 years of age;
(c) Is not a veteran of the United States military;
(d) Is unmarried;
(e) Does not have a dependent child;
(f) Is not a person with disabilities, as such term is defined in
section 3(b)(3)(E) of the 1937 Act and was not receiving assistance
under section 8 of the 1937 Act as of November 30, 2005; and
(g) Is not otherwise individually eligible, or has parents who,
individually or jointly, are not eligible on the basis of income to
receive assistance under section 8 of the 1937 Act.
[70 FR 77743, Dec. 30, 2005, as amended at 73 FR 49333, Aug. 21, 2008]
Sec. 5.613 Public housing program and Section 8 tenant-based
assistance program: PHA cooperation with welfare agency.
(a) This section applies to the public housing program and the
Section 8 tenant-based assistance program.
(b) The PHA must make best efforts to enter into cooperation
agreements with welfare agencies under which such agencies agree:
(1) To target public assistance, benefits and services to families
receiving assistance in the public housing program and the Section 8
tenant-based
[[Page 101]]
assistance program to achieve self-sufficiency;
(2) To provide written verification to the PHA concerning welfare
benefits for families applying for or receiving assistance in these
housing assistance programs.
[65 FR 16717, Mar. 29, 2000]
Sec. 5.615 Public housing program and Section 8 tenant-based
assistance program: How welfare benefit reduction affects family
income.
(a) Applicability. This section applies to covered families who
reside in public housing (part 960 of this title) or receive Section 8
tenant-based assistance (part 982 of this title).
(b) Definitions. The following definitions apply for purposes of
this section:
Covered families. Families who receive welfare assistance or other
public assistance benefits (``welfare benefits'') from a State or other
public agency (``welfare agency'') under a program for which Federal,
State, or local law requires that a member of the family must
participate in an economic self-sufficiency program as a condition for
such assistance.
Economic self-sufficiency program. See definition at Sec. 5.603.
Imputed welfare income. The amount of annual income not actually
received by a family, as a result of a specified welfare benefit
reduction, that is nonetheless included in the family's annual income
for purposes of determining rent.
Specified welfare benefit reduction.
(1) A reduction of welfare benefits by the welfare agency, in whole
or in part, for a family member, as determined by the welfare agency,
because of fraud by a family member in connection with the welfare
program; or because of welfare agency sanction against a family member
for noncompliance with a welfare agency requirement to participate in an
economic self-sufficiency program.
(2) ``Specified welfare benefit reduction'' does not include a
reduction or termination of welfare benefits by the welfare agency:
(i) at expiration of a lifetime or other time limit on the payment
of welfare benefits;
(ii) because a family member is not able to obtain employment, even
though the family member has complied with welfare agency economic self-
sufficiency or work activities requirements; or
(iii) because a family member has not complied with other welfare
agency requirements.
(c) Imputed welfare income. (1) A family's annual income includes
the amount of imputed welfare income (because of a specified welfare
benefits reduction, as specified in notice to the PHA by the welfare
agency), plus the total amount of other annual income as determined in
accordance with Sec. 5.609.
(2) At the request of the PHA, the welfare agency will inform the
PHA in writing of the amount and term of any specified welfare benefit
reduction for a family member, and the reason for such reduction, and
will also inform the PHA of any subsequent changes in the term or amount
of such specified welfare benefit reduction. The PHA will use this
information to determine the amount of imputed welfare income for a
family.
(3) A family's annual income includes imputed welfare income in
family annual income, as determined at the PHA's interim or regular
reexamination of family income and composition, during the term of the
welfare benefits reduction (as specified in information provided to the
PHA by the welfare agency).
(4) The amount of the imputed welfare income is offset by the amount
of additional income a family receives that commences after the time the
sanction was imposed. When such additional income from other sources is
at least equal to the imputed welfare income, the imputed welfare income
is reduced to zero.
(5) The PHA may not include imputed welfare income in annual income
if the family was not an assisted resident at the time of sanction.
(d) Review of PHA decision--(1) Public housing. If a public housing
tenant claims that the PHA has not correctly calculated the amount of
imputed welfare income in accordance with HUD requirements, and if the
PHA denies the family's request to modify such
[[Page 102]]
amount, the PHA shall give the tenant written notice of such denial,
with a brief explanation of the basis for the PHA determination of the
amount of imputed welfare income. The PHA notice shall also state that
if the tenant does not agree with the PHA determination, the tenant may
request a grievance hearing in accordance with part 966, subpart B of
this title to review the PHA determination. The tenant is not required
to pay an escrow deposit pursuant to Sec. 966.55(e) for the portion of
tenant rent attributable to the imputed welfare income in order to
obtain a grievance hearing on the PHA determination.
(2) Section 8 participant. A participant in the Section 8 tenant-
based assistance program may request an informal hearing, in accordance
with Sec. 982.555 of this title, to review the PHA determination of the
amount of imputed welfare income that must be included in the family's
annual income in accordance with this section. If the family claims that
such amount is not correctly calculated in accordance with HUD
requirements, and if the PHA denies the family's request to modify such
amount, the PHA shall give the family written notice of such denial,
with a brief explanation of the basis for the PHA determination of the
amount of imputed welfare income. Such notice shall also state that if
the family does not agree with the PHA determination, the family may
request an informal hearing on the determination under the PHA hearing
procedure.
(e) PHA relation with welfare agency. (1) The PHA must ask welfare
agencies to inform the PHA of any specified welfare benefits reduction
for a family member, the reason for such reduction, the term of any such
reduction, and any subsequent welfare agency determination affecting the
amount or term of a specified welfare benefits reduction. If the welfare
agency determines a specified welfare benefits reduction for a family
member, and gives the PHA written notice of such reduction, the family's
annual incomes shall include the imputed welfare income because of the
specified welfare benefits reduction.
(2) The PHA is responsible for determining the amount of imputed
welfare income that is included in the family's annual income as a
result of a specified welfare benefits reduction as determined by the
welfare agency, and specified in the notice by the welfare agency to the
PHA. However, the PHA is not responsible for determining whether a
reduction of welfare benefits by the welfare agency was correctly
determined by the welfare agency in accordance with welfare program
requirements and procedures, nor for providing the opportunity for
review or hearing on such welfare agency determinations.
(3) Such welfare agency determinations are the responsibility of the
welfare agency, and the family may seek appeal of such determinations
through the welfare agency's normal due process procedures. The PHA
shall be entitled to rely on the welfare agency notice to the PHA of the
welfare agency's determination of a specified welfare benefits
reduction.
[65 FR 16717, Mar. 29, 2000]
Sec. 5.617 Self-sufficiency incentives for persons with
disabilities--Disallowance of increase in annual income.
(a) Applicable programs. The disallowance of earned income provided
by this section is applicable only to the following programs: HOME
Investment Partnerships Program (24 CFR part 92); Housing Opportunities
for Persons with AIDS (24 CFR part 574); Supportive Housing Program (24
CFR part 583); and the Housing Choice Voucher Program (24 CFR part 982).
(b) Definitions. The following definitions apply for purposes of
this section.
Baseline income. The annual income immediately prior to
implementation of the disallowance described in paragraph (c)(1) of this
section of a person with disabilities (who is a member of a qualified
family).
Disallowance. Exclusion from annual income.
Previously unemployed includes a person with disabilities who has
earned, in the twelve months previous to employment, no more than would
be received for 10 hours of work per week for 50 weeks at the
established minimum wage.
[[Page 103]]
Qualified family. A family residing in housing assisted under one of
the programs listed in paragraph (a) of this section or receiving
tenant-based rental assistance under one of the programs listed in
paragraph (a) of this section.
(1) Whose annual income increases as a result of employment of a
family member who is a person with disabilities and who was previously
unemployed for one or more years prior to employment;
(2) Whose annual income increases as a result of increased earnings
by a family member who is a person with disabilities during
participation in any economic self-sufficiency or other job training
program; or
(3) Whose annual income increases, as a result of new employment or
increased earnings of a family member who is a person with disabilities,
during or within six months after receiving assistance, benefits or
services under any state program for temporary assistance for needy
families funded under Part A of Title IV of the Social Security Act, as
determined by the responsible entity in consultation with the local
agencies administering temporary assistance for needy families (TANF)
and Welfare-to-Work (WTW) programs. The TANF program is not limited to
monthly income maintenance, but also includes such benefits and services
as one-time payments, wage subsidies and transportation assistance--
provided that the total amount over a six-month period is at least $500.
(c) Disallowance of increase in annual income--(1) Initial 12-month
exclusion. During the 12-month period beginning on the date a member who
is a person with disabilities of a qualified family is first employed or
the family first experiences an increase in annual income attributable
to employment, the responsible entity must exclude from annual income
(as defined in the regulations governing the applicable program listed
in paragraph (a) of this section) of a qualified family any increase in
income of the family member who is a person with disabilities as a
result of employment over prior income of that family member.
(2) Second 12-month exclusion and phase-in. Upon the expiration of
the 12-month period defined in paragraph (c)(1) of this section and for
the subsequent 12-month period, the responsible entity must exclude from
annual income of a qualified family at least 50 percent of any increase
in income of such family member as a result of employment over the
family member's baseline income.
(3) Maximum 2-year disallowance. The disallowance of increased
income of an individual family member who is a person with disabilities
as provided in paragraph (c)(1) or (c)(2) of this section is limited to
a lifetime 24-month period. The disallowance applies for a maximum of 12
months for disallowance under paragraph (c)(1) of this section and a
maximum of 12 months for disallowance under paragraph (c)(2) of this
section, during the 24- month period starting from the initial exclusion
under paragraph (c)(1) of this section.
(4) Effect of changes on currently participating families. Families
eligible for and participating in the disallowance of earned income
under this section prior to May 9, 2016 will continue to be governed by
this section in effect as it existed immediately prior to that date (see
24 CFR parts 0 to 199, revised as of April 1, 2016).
(d) Inapplicability to admission. The disallowance of increases in
income as a result of employment of persons with disabilities under this
section does not apply for purposes of admission to the program
(including the determination of income eligibility or any income
targeting that may be applicable).
[66 FR 6223, Jan. 19, 2001, as amended at 67 FR 6820, Feb. 13, 2002; 81
FR 12370, Mar. 8, 2016]
Family Payment
Sec. 5.628 Total tenant payment.
(a) Determining total tenant payment (TTP). Total tenant payment is
the highest of the following amounts, rounded to the nearest dollar:
(1) 30 percent of the family's monthly adjusted income;
(2) 10 percent of the family's monthly income;
(3) If the family is receiving payments for welfare assistance from
a public agency and a part of those payments, adjusted in accordance
with the
[[Page 104]]
family's actual housing costs, is specifically designated by such agency
to meet the family's housing costs, the portion of those payments which
is so designated; or
(4) The minimum rent, as determined in accordance with Sec. 5.630.
(b) Determining TTP if family's welfare assistance is ratably
reduced. If the family's welfare assistance is ratably reduced from the
standard of need by applying a percentage, the amount calculated under
paragraph (a)(3) of this section is the amount resulting from one
application of the percentage.
[65 FR 16718, Mar. 29, 2000]
Sec. 5.630 Minimum rent.
(a) Minimum rent. (1) The PHA must charge a family no less than a
minimum monthly rent established by the responsible entity, except as
described in paragraph (b) of this section.
(2) For the public housing program and the section 8 moderate
rehabilitation, and certificate or voucher programs, the PHA may
establish a minimum rent of up to $50.
(3) For other section 8 programs, the minimum rent is $25.
(b) Financial hardship exemption from minimum rent--(1) When is
family exempt from minimum rent? The responsible entity must grant an
exemption from payment of minimum rent if the family is unable to pay
the minimum rent because of financial hardship, as described in the
responsible entity's written policies. Financial hardship includes these
situations:
(i) When the family has lost eligibility for or is awaiting an
eligibility determination for a Federal, State, or local assistance
program, including a family that includes a member who is a noncitizen
lawfully admitted for permanent residence under the Immigration and
Nationality Act who would be entitled to public benefits but for title
IV of the Personal Responsibility and Work Opportunity Act of 1996;
(ii) When the family would be evicted because it is unable to pay
the minimum rent;
(iii) When the income of the family has decreased because of changed
circumstances, including loss of employment;
(iv) When a death has occurred in the family; and
(v) Other circumstances determined by the responsible entity or HUD.
(2) What happens if family requests a hardship exemption? (i) Public
housing. (A) If a family requests a financial hardship exemption, the
PHA must suspend the minimum rent requirement beginning the month
following the family's request for a hardship exemption, and continuing
until the PHA determines whether there is a qualifying financial
hardship and whether it is temporary or long term.
(B) The PHA must promptly determine whether a qualifying hardship
exists and whether it is temporary or long term.
(C) The PHA may not evict the family for nonpayment of minimum rent
during the 90-day period beginning the month following the family's
request for a hardship exemption.
(D) If the PHA determines that a qualifying financial hardship is
temporary, the PHA must reinstate the minimum rent from the beginning of
the suspension of the minimum rent. The PHA must offer the family a
reasonable repayment agreement, on terms and conditions established by
the PHA, for the amount of back minimum rent owed by the family.
(ii) All section 8 programs. (A) If a family requests a financial
hardship exemption, the responsible entity must suspend the minimum rent
requirement beginning the month following the family's request for a
hardship exemption until the responsible entity determines whether there
is a qualifying financial hardship, and whether such hardship is
temporary or long term.
(B) The responsible entity must promptly determine whether a
qualifying hardship exists and whether it is temporary or long term.
(C) If the responsible entity determines that a qualifying financial
hardship is temporary, the PHA must not impose the minimum rent during
the 90-day period beginning the month following the date of the family's
request for a hardship exemption. At the end of the 90-day suspension
period, the responsible entity must reinstate the minimum rent from the
beginning of
[[Page 105]]
the suspension. The family must be offered a reasonable repayment
agreement, on terms and conditions established by the responsible
entity, for the amount of back rent owed by the family.
(iii) All programs. (A) If the responsible entity determines there
is no qualifying financial hardship exemption, the responsible entity
must reinstate the minimum rent, including back rent owed from the
beginning of the suspension. The family must pay the back rent on terms
and conditions established by the responsible entity.
(B) If the responsible entity determines a qualifying financial
hardship is long term, the responsible entity must exempt the family
from the minimum rent requirements so long as such hardship continues.
Such exemption shall apply from the beginning of the month following the
family's request for a hardship exemption until the end of the
qualifying financial hardship.
(C) The financial hardship exemption only applies to payment of the
minimum rent (as determined pursuant to Sec. 5.628(a)(4) and Sec.
5.630), and not to the other elements used to calculate the total tenant
payment (as determined pursuant to Sec. 5.628(a)(1), (a)(2) and
(a)(3)).
(3) Public housing: Grievance hearing concerning PHA denial of
request for hardship exemption. If a public housing family requests a
hearing under the PHA grievance procedure, to review the PHA's
determination denying or limiting the family's claim to a financial
hardship exemption, the family is not required to pay any escrow deposit
in order to obtain a grievance hearing on such issues.
[65 FR 16718, Mar. 29, 2000]
Sec. 5.632 Utility reimbursements.
(a) Applicability. This section is applicable to:
(1) The Section 8 programs other than the Section 8 voucher program
(for distribution of a voucher housing assistance payment that exceeds
rent to owner, see Sec. 982.514(b) of this title);
(2) A public housing family paying an income-based rent (see Sec.
960.253 of this title). (Utility reimbursement is not paid for a public
housing family that is paying a flat rent.)
(b) Payment of utility reimbursement. (1) The responsible entity
pays a utility reimbursement if the utility allowance (for tenant-paid
utilities) exceeds the amount of the total tenant payment. The
responsible entity has the option of making utility reimbursement
payments not less than once per calendar-year quarter, for
reimbursements totaling $45 or less per quarter. In the event a family
leaves the program in advance of its next quarterly reimbursement, the
responsible entity must reimburse the family for a prorated share of the
applicable reimbursement. PHAs and owners exercising this option must
have a hardship policy in place for tenants.
(2) In the public housing program (where the family is paying an
income-based rent), the Section 8 moderate rehabilitation program and
the Section 8 certificate or voucher program, the PHA may pay the
utility reimbursement either to the family or directly to the utility
supplier to pay the utility bill on behalf of the family. If the PHA
elects to pay the utility supplier, the PHA must notify the family of
the amount paid to the utility supplier.
(3) In the other Section 8 programs, the owner must pay the utility
reimbursement either:
(i) To the family, or
(ii) With consent of the family, to the utility supplier to pay the
utility bill on behalf of the family.
[65 FR 16719, Mar. 29, 2000, as amended at 82 FR 58339, Dec. 12, 2017]
Sec. 5.634 Tenant rent.
(a) Section 8 programs. For Section 8 programs other than the
Section 8 voucher program, tenant rent is total tenant payment minus any
utility allowance.
(b) Public housing. See Sec. 960.253 of this title for the
determination of tenant rent.
[65 FR 16719, Mar. 29, 2000]
[[Page 106]]
Section 8 Project-Based Assistance: Occupancy Requirements
Sec. 5.653 Section 8 project-based assistance programs:
Admission--Income-eligibility and income-targeting.
(a) Applicability. This section describes requirements concerning
income-eligibility and income-targeting that apply to the Section 8
project-based assistance programs, except for the moderate
rehabilitation and the project-based certificate or voucher programs.
(b) Who is eligible?--(1) Basic eligibility. An applicant must meet
all eligibility requirements in order to receive housing assistance. At
a minimum, the applicant must be a family, as defined in Sec. 5.403,
and must be income-eligible, as described in this section. Such eligible
applicants include single persons.
(2) Low income limit. No family other than a low income family is
eligible for admission to the Section 8 project-based assistance
programs. (This paragraph (b) does not apply to the Section 8 project-
based voucher program under part 983 of this title.)
(c) Targeting to extremely low income families. For each project
assisted under a contract for project-based assistance, of the dwelling
units that become available for occupancy in any fiscal year that are
assisted under the contract, not less than 40 percent shall be available
for leasing only by families that are extremely low income families at
the time of admission.
(d) Limitation on admission of non-very low income families--(1)
Admission to units available before October 1, 1981. Not more than 25
percent of the Section 8 project-based dwelling units that were
available for occupancy under Section 8 Housing Assistance Payments
Contracts effective before October 1, 1981 and that are leased on or
after that date shall be available for leasing by low income families
other than very low income families. HUD reserves the right to limit the
admission of low income families other than very low income families to
these units.
(2) Admission to units available on or after October 1, 1981. Not
more than 15 percent of the Section 8 project-based dwelling units that
initially become available for occupancy under Section 8 Housing
Assistance Payments (HAP) Contracts on or after October 1, 1981 shall be
available for leasing by low income families other than families that
are very low income families at the time of admission to the Section 8
program. Except with the prior approval of HUD under paragraphs (d)(3)
and (d)(4) of this section, the owner may only lease such units to very
low income families.
(3) Request for exception. A request by an owner for approval of
admission of low income families other than very low income families to
section 8 project-based units must state the basis for requesting the
exception and provide supporting data. Bases for exceptions that may be
considered include the following:
(i) Need for admission of a broader range of tenants to preserve the
financial or management viability of a project because there is an
insufficient number of potential applicants who are very low income
families;
(ii) Commitment of an owner to attaining occupancy by families with
a broad range of incomes;
(iii) Project supervision by a State Housing Finance Agency having a
policy of occupancy by families with a broad range of incomes supported
by evidence that the Agency is pursuing this goal throughout its
assisted projects in the community, or a project with financing through
Section 11(b) of the 1937 Act (42 U.S.C. 1437i) or under Section 103 of
the Internal Revenue Code (26 U.S.C. 103); and
(iv) Low-income families that otherwise would be displaced from a
Section 8 project.
(4) Action on request for exception. Whether to grant any request
for exception is a matter committed by law to HUD's discretion, and no
implication is intended to be created that HUD will seek to grant
approvals up to the maximum limits permitted by statute, nor is any
presumption of an entitlement to an exception created by the
specification of certain grounds for exception that HUD may consider.
HUD will review exceptions granted to owners at regular intervals. HUD
may withdraw permission to exercise those exceptions for program
applicants at any time that exceptions are not being
[[Page 107]]
used or after a periodic review, based on the findings of the review.
(e) Income used for eligibility and targeting. Family annual income
(see Sec. 5.609) is used both for determination of income-eligibility
and for income-targeting under this section.
(f) Reporting. The Section 8 owner must comply with HUD-prescribed
reporting requirements, including income reporting requirements that
will permit HUD to maintain the data necessary to monitor compliance
with income-eligibility and income-targeting requirements.
[65 FR 16719, Mar. 29, 2000]
Sec. 5.655 Section 8 project-based assistance programs: Owner
preferences in selection for a project or unit.
(a) Applicability. This section applies to the section 8 project-
based assistance programs. The section describes requirements concerning
the Section 8 owner's selection of residents to occupy a project or
unit, except for the moderate rehabilitation and the project-based
certificate or voucher programs.
(b) Selection--(1) Selection for owner's project or unit. Selection
for occupancy of a project or unit is the function of the Section 8
owner. However, selection is subject to the income-eligibility and
income-targeting requirements in Sec. 5.653.
(2) Tenant selection plan. The owner must adopt a written tenant
selection plan in accordance with HUD requirements.
(3) Amount of income. The owner may not select a family for
occupancy of a project or unit in an order different from the order on
the owner's waiting list for the purpose of selecting a relatively
higher income family. However, an owner may select a family for
occupancy of a project or unit based on its income in order to satisfy
the targeting requirements of Sec. 5.653(c).
(4) Selection for particular unit. In selecting a family to occupy a
particular unit, the owner may match family characteristics with the
type of unit available, for example, number of bedrooms. If a unit has
special accessibility features for persons with disabilities, the owner
must first offer the unit to families which include persons with
disabilities who require such features (see Sec. Sec. 8.27 and 100.202
of this title).
(5) Housing assistance limitation for single persons. A single
person who is not an elderly or displaced person, a person with
disabilities, or the remaining member of a resident family may not be
provided a housing unit with two or more bedrooms.
(c) Particular owner preferences. The owner must inform all
applicants about available preferences and must give applicants an
opportunity to show that they qualify for available preferences.
(1) Residency requirements or preferences. (i) Residency
requirements are prohibited. Although the owner is not prohibited from
adopting a residency preference, the owner may only adopt or implement
residency preferences in accordance with non-discrimination and equal
opportunity requirements listed at Sec. 5.105(a).
(ii) A residency preference is a preference for admission of persons
who reside in a specified geographic area (``residency preference
area'').
(iii) An owner's residency preference must be approved by HUD in one
of the following methods:
(A) Prior approval of the housing market area in the Affirmative
Fair Housing Marketing plan (in accordance with Sec. 108.25 of this
title) as a residency preference area;
(B) Prior approval of the residency preference area in the PHA plan
of the jurisdiction in which the project is located;
(C) Modification of the Affirmative Fair Housing Marketing Plan, in
accordance with Sec. 108.25 of this title,
(iv) Use of a residency preference may not have the purpose or
effect of delaying or otherwise denying admission to a project or unit
based on the race, color, ethnic origin, gender, religion, disability,
or age of any member of an applicant family.
(v) A residency preference must not be based on how long an
applicant has resided or worked in a residency preference area.
(vi) Applicants who are working or who have been notified that they
are hired to work in a residency preference area must be treated as
residents of the residency preference area. The owner
[[Page 108]]
may treat graduates of, or active participants in, education and
training programs in a residency preference area as residents of the
residency preference area if the education or training program is
designed to prepare individuals for the job market.
(2) Preference for working families. (i) The owner may adopt a
preference for admission of working families (families where the head,
spouse or sole member is employed). However, an applicant shall be given
the benefit of the working family preference if the head and spouse, or
sole member, is age 62 or older, or is a person with disabilities.
(ii) If the owner adopts a preference for admission of working
families, the owner must not give a preference based on the amount of
earned income.
(3) Preference for person with disabilities. The owner may adopt a
preference for admission of families that include a person with
disabilities. However, the owner may not adopt a preference for
admission of persons with a specific disability.
(4) Preference for victims of domestic violence. The owner should
consider whether to adopt a preference for admission of families that
include victims of domestic violence.
(5) Preference for single persons who are elderly, displaced,
homeless or persons with disabilities over other single persons. The
owner may adopt a preference for admission of single persons who are age
62 or older, displaced, homeless, or persons with disabilities over
other single persons.
[65 FR 16720, Mar. 29, 2000]
Sec. 5.657 Section 8 project-based assistance programs:
Reexamination of family income and composition.
(a) Applicability. This section states requirements for
reexamination of family income and composition in the Section 8 project-
based assistance programs, except for the moderate rehabilitation and
the project-based certificate or voucher programs.
(b) Regular reexamination. The owner must conduct a reexamination
and redetermination of family income and composition at least annually.
(c) Interim reexaminations. A family may request an interim
reexamination of family income because of any changes since the last
examination. The owner must make the interim reexamination within a
reasonable time after the family request. The owner may adopt policies
prescribing when and under what conditions the family must report a
change in family income or composition.
(d) Streamlined income determination--(1) General. An owner may
elect to apply a streamlined income determination to families receiving
fixed income as described in paragraph (d)(3) of this section.
(2) Definition of ``fixed income''. For purposes of this section,
``fixed income'' means periodic payments at reasonably predictable
levels from one or more of the following sources:
(i) Social Security, Supplemental Security Income, Supplemental
Disability Insurance.
(ii) Federal, state, local, or private pension plans.
(iii) Annuities or other retirement benefit programs, insurance
policies, disability or death benefits, or other similar types of
periodic receipts.
(iv) Any other source of income subject to adjustment by a
verifiable COLA or current rate of interest.
(3) Method of streamlined income determination. Owners using the
streamlined income determination must adjust a family's income according
to the percentage of a family's unadjusted income that is from fixed
income.
(i) When 90 percent or more of a family's unadjusted income consists
of fixed income, owners using streamlined income determinations must
apply a COLA or COLAs to the family's fixed-income sources, provided
that the family certifies both that 90 percent or more of their
unadjusted income is fixed income and that their sources of fixed income
have not changed from the previous year. For non-fixed income, owners
may choose, but are not required, to make appropriate adjustments
pursuant to paragraph (b) of this section.
(ii) When less than 90 percent of a family's unadjusted income
consists of fixed income, owners using streamlined income determinations
must apply a COLA to each of the family's sources of fixed income.
Owners must determine
[[Page 109]]
all other income pursuant to paragraph (b) of this section.
(4) COLA rate applied by owners. Owners using streamlined income
determinations must adjust a family's fixed income using a COLA or
current interest rate that applies to each specific source of fixed
income and is available from a public source or through tenant-provided,
third-party-generated documentation. If no public verification or
tenant-provided documentation is available, then the owner must obtain
third-party verification of the income amounts in order to calculate the
change in income for the source.
(5) Triennial verification. For any income determined pursuant to a
streamlined income determination, an owner must obtain third-party
verification of all income amounts every 3 years.
[65 FR 16720, Mar. 29, 2000, as amended at 81 FR 12371, Mar. 8, 2016; 82
FR 58340, Dec. 12, 2017]
Sec. 5.659 Family information and verification.
(a) Applicability. This section states requirements for
reexamination of family income and composition in the Section 8 project-
based assistance programs, except for the moderate rehabilitation
program and the project-based certificate or voucher programs.
(b) Family obligation to supply information. (1) The family must
supply any information that HUD or the owner determines is necessary in
administration of the Section 8 program, including submission of
required evidence of citizenship or eligible immigration status (as
provided by part 5, subpart E of this title). ``Information'' includes
any requested certification, release or other documentation.
(2) The family must supply any information requested by the owner or
HUD for use in a regularly scheduled reexamination or an interim
reexamination of family income and composition in accordance with HUD
requirements.
(3) For requirements concerning the following, see part 5, subpart B
of this title:
(i) Family verification and disclosure of social security numbers;
(ii) Family execution and submission of consent forms for obtaining
wage and claim information from State Wage Information Collection
Agencies (SWICAs).
(4) Any information supplied by the family must be true and
complete.
(c) Family release and consent. (1) As a condition of admission to
or continued occupancy of a unit with Section 8 assistance, the owner
must require the family head, and such other family members as the owner
designates, to execute a HUD-approved release and consent form
(including any release and consent as required under Sec. 5.230 of this
title) authorizing any depository or private source of income, or any
Federal, State or local agency, to furnish or release to the owner or
HUD such information as the owner or HUD determines to be necessary.
(2) The use or disclosure of information obtained from a family or
from another source pursuant to this release and consent shall be
limited to purposes directly connected with administration of the
Section 8 program.
(d) Owner responsibility for verification. Except as allowed under
paragraph (e), the owner must obtain and document in the family file
third party verification of the following factors, or must document in
the file why third party verification was not available:
(1) Reported family annual income;
(2) The value of assets;
(3) Expenses related to deductions from annual income; and
(4) Other factors that affect the determination of adjusted income.
(e) Verification of assets. For a family with net assets equal to or
less than $5,000, an owner may accept, for purposes of recertification
of income, a family's declaration that it has net assets equal to or
less than $5,000 without taking additional steps to verify the accuracy
of the declaration, except as required in paragraph (e)(2) of this
section.
(1) The declaration must state the amount of income the family
expects to receive from such assets; this amount must be included in the
family's income.
(2) An owner must obtain third-party verification of all family
assets every 3 years.
[65 FR 16721, Mar. 29, 2000, as amended at 82 FR 58340, Dec. 12, 2017]
[[Page 110]]
Sec. 5.661 Section 8 project-based assistance programs:
Approval for police or other security personnel to live
in project.
(a) Applicability. This section describes when a Section 8 owner may
lease a Section 8 unit to police or other security personnel with
continued Section 8 assistance for the unit. This section applies to the
Section 8 project-based assistance programs.
(b) Terms. (1) Security personnel means:
(i) A police officer, or
(ii) A qualified security professional, with adequate training and
experience to provide security services for project residents.
(2) Police officer means a person employed on a full-time basis as a
duly licensed professional police officer by a Federal, State or local
government or by any agency of these governments.
(3) Security includes the protection of project residents, including
resident project management from criminal or other activity that is a
threat to person or property, or that arouses fears of such threat.
(c) Owner application. (1) The owner may submit a written
application to the contract administrator (PHA or HUD) for approval to
lease an available unit in a Section 8 project to security personnel who
would not otherwise be eligible for Section 8 assistance, for the
purpose of increasing security for Section 8 families residing in the
project.
(2) The owner's application must include the following information:
(i) A description of criminal activities in the project and the
surrounding community, and the effect of criminal activity on the
security of project residents.
(ii) Qualifications of security personnel who will reside in the
project, and the period of residence by such personnel. How owner
proposes to check backgrounds and qualifications of any security
personnel who will reside in the project.
(iii) Full disclosure of any family relationship between the owner
and any security personnel. For this purpose, ``owner'' includes a
principal or other interested party.
(iv) How residence by security personnel in a project unit will
increase security for Section 8 assisted families residing in the
project.
(v) The amount payable monthly as rent to the unit owner by security
personnel residing in the project (including a description of how this
amount is determined), and the amount of any other compensation by the
owner to such resident security personnel.
(vi) The terms of occupancy by such security personnel. The lease by
owner to the approved security personnel may provide that occupancy of
the unit is authorized only while the security personnel is
satisfactorily performing any agreed responsibilities and functions for
project security.
(vii) Other information as requested by the contract administrator.
(d) Action by contract administrator. (1) The contract administrator
shall have discretion to approve or disapprove owner's application, and
to impose conditions for approval of occupancy by security personnel in
a section 8 project unit.
(2) Notice of approval by the contract administrator shall specify
the term of such approved occupancy. Such approval may be withdrawn at
the discretion of the contract administrator, for example, if the
contract administrator determines that such occupancy is not providing
adequate security benefits as proposed in the owner's application; or
that security benefits from such occupancy are not a sufficient return
for program costs.
(e) Housing assistance payment and rent. (1) During approved
occupancy by security personnel as provided in this section, the amount
of the monthly housing assistance payment to the owner shall be equal to
the contract rent (as determined in accordance with the HAP contract and
HUD requirements) minus the amount (as approved by the contract
administrator) of rent payable monthly as rent to the unit owner by such
security personnel. The owner shall bear the risk of collecting such
rent from such security personnel, and the amount of the housing
assistance payment shall not be increased because of non-payment by such
security personnel. The owner shall not be entitled to receive any
vacancy payment for the period following occupancy by such security
personnel.
[[Page 111]]
(2) In approving the amount of monthly rent payable by security
personnel for occupancy of a contract unit, the contract administrator
may consider whether security services to be performed are an adequate
return for housing assistance payments on the unit, or whether the cost
of security services should be borne by the owner from other project
income.
[65 FR 16721, Mar. 29, 2000]
Effective Date Note: At 65 FR 16721, Mar. 29, 2000, Sec. 5.661 was
added. This section contains information collection and recordkeeping
requirements and will not become effective until approval has been given
by the Office of Management and Budget.
Subpart G_Physical Condition Standards and Inspection Requirements
Source: 63 FR 46577, Sept. 1, 1998, unless otherwise noted.
Sec. 5.701 Applicability.
(a) This subpart applies to housing assisted under the HUD programs
listed in 24 CFR 200.853(a).
(b) This subpart applies to housing with mortgages insured or held
by HUD, or housing that is receiving assistance from HUD, under the
programs listed in 24 CFR 200.853(b).
(c) This subpart also applies to Public Housing (housing receiving
assistance under the U.S. Housing Act of 1937, other than under section
8 of the Act).
(d) For purposes of this subpart, the term ``HUD housing'' means the
types of housing listed in paragraphs (a), (b), and (c) of this section.
[63 FR 46577, Sept. 1, 1998, as amended at 65 FR 77240, Dec. 8, 2000]
Sec. 5.703 Physical condition standards for HUD housing that is decent,
safe, sanitary and in good repair (DSS/GR).
HUD housing must be decent, safe, sanitary and in good repair.
Owners of housing described in Sec. 5.701(a), mortgagors of housing
described in Sec. 5.701(b), and PHAs and other entities approved by HUD
owning housing described in Sec. 5.701(c), must maintain such housing
in a manner that meets the physical condition standards set forth in
this section in order to be considered decent, safe, sanitary and in
good repair. These standards address the major areas of the HUD housing:
the site; the building exterior; the building systems; the dwelling
units; the common areas; and health and safety considerations.
(a) Site. The site components, such as fencing and retaining walls,
grounds, lighting, mailboxes/project signs, parking lots/driveways, play
areas and equipment, refuse disposal, roads, storm drainage and walkways
must be free of health and safety hazards and be in good repair. The
site must not be subject to material adverse conditions, such as
abandoned vehicles, dangerous walks or steps, poor drainage, septic tank
back-ups, sewer hazards, excess accumulations of trash, vermin or rodent
infestation or fire hazards.
(b) Building exterior. Each building on the site must be
structurally sound, secure, habitable, and in good repair. Each
building's doors, fire escapes, foundations, lighting, roofs, walls, and
windows, where applicable, must be free of health and safety hazards,
operable, and in good repair.
(c) Building systems. Each building's domestic water, electrical
system, elevators, emergency power, fire protection, HVAC, and sanitary
system must be free of health and safety hazards, functionally adequate,
operable, and in good repair.
(d) Dwelling units. (1) Each dwelling unit within a building must be
structurally sound, habitable, and in good repair. All areas and aspects
of the dwelling unit (for example, the unit's bathroom, call-for-aid (if
applicable), ceiling, doors, electrical systems, floors, hot water
heater, HVAC (where individual units are provided), kitchen, lighting,
outlets/switches, patio/porch/balcony, smoke detectors, stairs, walls,
and windows) must be free of health and safety hazards, functionally
adequate, operable, and in good repair.
(2) Where applicable, the dwelling unit must have hot and cold
running water, including an adequate source of potable water (note for
example that single room occupancy units need not contain water
facilities).
(3) If the dwelling unit includes its own sanitary facility, it must
be in
[[Page 112]]
proper operating condition, usable in privacy, and adequate for personal
hygiene and the disposal of human waste.
(4) The dwelling unit must include at least one battery-operated or
hard-wired smoke detector, in proper working condition, on each level of
the unit.
(e) Common areas. The common areas must be structurally sound,
secure, and functionally adequate for the purposes intended. The
basement/garage/carport, restrooms, closets, utility, mechanical,
community rooms, day care, halls/corridors, stairs, kitchens, laundry
rooms, office, porch, patio, balcony, and trash collection areas, if
applicable, must be free of health and safety hazards, operable, and in
good repair. All common area ceilings, doors, floors, HVAC, lighting,
outlets/switches, smoke detectors, stairs, walls, and windows, to the
extent applicable, must be free of health and safety hazards, operable,
and in good repair. These standards for common areas apply, to a varying
extent, to all HUD housing, but will be particularly relevant to
congregate housing, independent group homes/residences, and single room
occupancy units, in which the individual dwelling units (sleeping areas)
do not contain kitchen and/or bathroom facilities.
(f) Health and safety concerns. All areas and components of the
housing must be free of health and safety hazards. These areas include,
but are not limited to, air quality, electrical hazards, elevators,
emergency/fire exits, flammable materials, garbage and debris, handrail
hazards, infestation, and lead-based paint. For example, the buildings
must have fire exits that are not blocked and have hand rails that are
undamaged and have no other observable deficiencies. The housing must
have no evidence of infestation by rats, mice, or other vermin, or of
garbage and debris. The housing must have no evidence of electrical
hazards, natural hazards, or fire hazards. The dwelling units and common
areas must have proper ventilation and be free of mold, odor (e.g.,
propane, natural gas, methane gas), or other observable deficiencies.
The housing must comply with all requirements related to the evaluation
and reduction of lead-based paint hazards and have available proper
certifications of such (see 24 CFR part 35).
(g) Compliance with State and local codes. The physical condition
standards in this section do not supersede or preempt State and local
codes for building and maintenance with which HUD housing must comply.
HUD housing must continue to adhere to these codes.
Sec. 5.705 Uniform physical inspection requirements.
Any entity responsible for conducting a physical inspection of HUD
housing, to determine compliance with this subpart, must inspect such
HUD housing annually in accordance with HUD-prescribed physical
inspection procedures. The inspection must be conducted annually unless
the program regulations governing the housing provide otherwise or
unless HUD has provided otherwise by notice.
[65 FR 77240, Dec. 8, 2000]
Subpart H_Uniform Financial Reporting Standards
Sec. 5.801 Uniform financial reporting standards.
(a) Applicability. This subpart H implements uniform financial
reporting standards for:
(1) Public housing agencies (PHAs) receiving assistance under
sections 5, 9, or 14 of the 1937 Act (42 U.S.C. 1437c, 1437g, and 1437l)
(Public Housing);
(2) PHAs as contract administrators for any Section 8 project-based
or tenant-based housing assistance payments program, which includes
assistance under the following programs:
(i) Section 8 project-based housing assistance payments programs,
including, but not limited to, the Section 8 New Construction,
Substantial Rehabilitation, Loan Management Set-Aside, Property
Disposition, and Moderate Rehabilitation (including the Single Room
Occupancy program for homeless individuals);
(ii) Section 8 Project-Based Certificate programs;
(iii) Any program providing Section 8 project-based renewal
contracts; and
[[Page 113]]
(iv) Section 8 tenant-based assistance under the Section 8
Certificate and Voucher program.
(3) Owners of housing assisted under any Section 8 project-based
housing assistance payments program:
(i) Including, but not limited to, the Section 8 New Construction,
Substantial Rehabilitation, Loan Management Set-Aside, and Property
Disposition programs;
(ii) Excluding the Section 8 Moderate Rehabilitation Program (which
includes the Single Room Occupancy program for homeless individuals) and
the Section 8 Project-Based Certificate Program;
(4) Owners of multifamily projects receiving direct or indirect
assistance from HUD, or with mortgages insured, coinsured, or held by
HUD, including but not limited to housing under the following HUD
programs:
(i) Section 202 Program of Supportive Housing for the Elderly;
(ii) Section 811 Program of Supportive Housing for Persons with
Disabilities;
(iii) Section 202 loan program for projects for the elderly and
handicapped (including 202/8 projects and 202/162 projects);
(iv) Section 207 of the National Housing Act (NHA) (12 U.S.C. 1701
et seq.) (Rental Housing Insurance);
(v) Section 213 of the NHA (Cooperative Housing Insurance);
(vi) Section 220 of the NHA (Rehabilitation and Neighborhood
Conservation Housing Insurance);
(vii) Section 221(d) (3) and (5) of the NHA (Housing for Moderate
Income and Displaced Families);
(viii) Section 221(d)(4) of the NHA (Housing for Moderate Income and
Displaced Families);
(ix) Section 231 of the NHA (Housing for Elderly Persons);
(x) Section 232 of the NHA (Mortgage Insurance for Nursing Homes,
Intermediate Care Facilities, Board and Care Homes);
(xi) Section 234(d) of the NHA (Rental) (Mortgage Insurance for
Condominiums);
(xii) Section 236 of the NHA (Rental and Cooperative Housing for
Lower Income Families);
(xiii) Section 241 of the NHA (Supplemental Loans for Multifamily
Projects); and
(5) HUD-approved Title I and Title II supervised and nonsupervised
lenders and mortgagees.
(6) Operators of projects with mortgages insured or held by HUD
under section 232 of the Act (Mortgage Insurance for Nursing Homes,
Intermediate Care Facilities, Board and Care Homes).
(b) Submission of financial information. Entities (or individuals)
to which this subpart is applicable must provide to HUD such financial
information as required by HUD. Such information must be provided on an
annual basis, except as required more frequently under paragraph (c)(4)
of this section. This information must be:
(1) Prepared in accordance with Generally Accepted Accounting
Principles as further defined by HUD in supplementary guidance;
(2) Submitted electronically to HUD through the internet, or in such
other electronic format designated by HUD, or in such non-electronic
format as HUD may allow if the burden or cost of electronic reporting is
determined by HUD to be excessive; and
(3) Submitted in such form and substance as prescribed by HUD.
(4) With respect to financial reports relating to properties insured
under section 232 of the Act, concurrently with submitting the
information to HUD, submitted to the mortgagee in a format and manner
prescribed and/or approved by HUD.
(c) Filing of financial reports. (1) For entities listed in
paragraphs (a)(1) and (2) of this section, the financial information to
be submitted to HUD in accordance with paragraph (b) of this section,
must be submitted to HUD annually, no later than 60 days after the end
of the fiscal year of the reporting period, and as otherwise provided by
law (for public housing agencies, see also 24 CFR 903.33).
(2) For entities listed in paragraphs (a)(3) and (4) of this
section, the financial information to be submitted to HUD in accordance
with paragraph (b) of this section, must be submitted to HUD annually,
no later than 90 days after the end of the fiscal year of the
[[Page 114]]
reporting period, and as otherwise provided by law.
(3) For those entities listed in paragraph (a)(5) of this section,
the financial information to be submitted to HUD in accordance with
paragraph (b) of this section must be submitted to HUD annually, no
later than 90 days after the end of the fiscal year (or within an
extended time if an extension is granted at the sole discretion of the
Secretary). An extension request must be received no earlier than 45
days and no later than 15 days prior to the submission deadline.
(4) For entities listed in paragraph (a)(6) of this section, the
financial information to be submitted to HUD in accordance with
paragraph (b) of this section must be submitted to HUD on a quarterly
and fiscal-year-to-date basis, within 60 calendar days of the end of
each quarterly reporting period deadline, except that the final fiscal-
year-end quarter and fiscal-year-to-date reports must be submitted to
HUD within 90 calendar days of the end of the fiscal-year-end quarter,
or within such additional time as may be provided by the Commissioner
for good cause shown. HUD may direct that such forms be submitted to the
lender or another third party in addition to or in lieu of submission to
HUD.
(i) The financial statements submitted by entities listed in
paragraph (a)(6) of this section may, at the operator's option, be
operator-certified rather than audited, provided, however, if the
operator is also the borrower, then that entity's obligation to submit
an annual audited financial statement (in addition to its obligation as
an operator to submit financial information on a quarterly and year-to-
date basis) remains and is not obviated.
(ii) If HUD has reason to believe that a particular operator's
operator-certified statements may be unreliable (for example, indicate a
likely prohibited use of project funds), or are presented in a manner
that is inconsistent with Generally Accepted Accounting Principles, HUD
may, on a case-by-case basis, require audited financial statements from
the operator. With respect to facilities with FHA-insured or HUD-held
Section 232 mortgages, HUD may request more frequent financial
statements from the borrower and/or the operator on a case-by-case basis
when the circumstances warrant. Nothing in this section limits HUD's
ability to obtain further or more frequent information when appropriate
pursuant to the applicable regulatory agreement.
(d) Reporting compliance dates. Entities (or individuals) that are
subject to the reporting requirements in this section must commence
compliance with these requirements as follows:
(1) For PHAs listed in paragraphs (a)(1) and (a)(2) of this section,
the requirements of this section will begin with those PHAs with fiscal
years ending September 30, 1999 and later. Unaudited financial
statements will be required 60 days after the PHA's fiscal year end, and
audited financial statements will then be required no later than 9
months after the PHA's fiscal year end, in accordance with the Single
Audit Act and 2 CFR part 200, subpart F. A PHA with a fiscal year ending
September 30, 1999 that elects to submit its unaudited financial report
earlier than the due date of November 30, 1999 must submit its report as
required in this section. On or after September 30, 1998, but prior to
November 30, 1999 (except for a PHA with its fiscal year ending
September 30, 1999), PHAs may submit their financial reports in
accordance with this section.
(2) For entities listed in paragraphs (a)(3) and (a)(4) of this
section, the requirements of this section will begin with those entities
with fiscal years ending December 31, 1998 and later. Entities listed in
paragraphs (a)(3) and (a)(4) of this section with fiscal years ending
December 31, 1998 that elect to submit their reports earlier than the
due date must submit their financial reports as required in this
section. On or after September 30, 1998 but prior to January 1, 1999,
these entities may submit their financial reports in accordance with
this section.
(3) The requirements of this section apply to the entities listed in
paragraph (a)(5) of this section with fiscal years ending on or after
September 30,
[[Page 115]]
2002. Audited financial statements submitted by lenders with fiscal
years ending before September 30, 2002, may either be submitted in paper
or electronically at the lenders' option. Audited financial statements
submitted by lenders with fiscal years ending on or after September 30,
2002, must be submitted electronically.
(4) Entities described in paragraph (a)(6) of this section must
comply with the requirements of this section with respect to fiscal
years commencing on or after the date that is 60 calendar days after the
date on which HUD announces, through Federal Register notice, that it
has issued guidance on the manner in which these reports will be
transmitted to HUD.
(e) Limitation on changing fiscal years. To allow for a period of
consistent assessment of the financial reports submitted to HUD under
this subpart part, PHAs listed in paragraphs (a)(1) and (a)(2) of this
section will not be allowed to change their fiscal years for their first
three full fiscal years following October 1, 1998.
(f) Responsibility for submission of financial report. The
responsibility for submission of the financial report due to HUD under
this section rests with the individuals and entities listed in paragraph
(a) of this section.
[63 FR 46591, Sept. 1, 1998, as amended at 64 FR 1505, Jan. 11, 1999; 64
FR 33755, June 24, 1999; 65 FR 16295, Mar. 27, 2000; 67 FR 53451, Aug.
15, 2002; 77 FR 55134, Sept. 7, 2012; 78 FR 57060, Sept. 17, 2013; 79 FR
55362, Sept. 16, 2014; 80 FR 75934, Dec. 7, 2015]
Subpart I_Preventing Crime in Federally Assisted Housing_Denying
Admission and Terminating Tenancy for Criminal Activity or Alcohol Abuse
Source: 66 FR 28792, May 24, 2001, unless otherwise noted.
General
Sec. 5.850 Which subsidized housing is covered by this subpart?
(a) If you are the owner of federally assisted housing, your
federally assisted housing is covered, except as provided in paragraph
(b) or (c) of this section.
(b) If you are operating public housing, this subpart does not
apply, but similar provisions applicable to public housing units are
found in parts 960 and 966 of this title. If you administer tenant-based
assistance under Section 8 or you are the owner of housing assisted with
tenant-based assistance under Section 8, this subpart does not apply to
you, but similar provisions that do apply are located in part 982 of
this title.
(c) If you own or administer housing assisted by the Rural Housing
Administration under section 514 or section 515 of the Housing Act of
1949, this subpart does not apply to you.
Sec. 5.851 What authority do I have to screen applicants and
to evict tenants?
(a) Screening applicants. You are authorized to screen applicants
for the programs covered by this part. The provisions of this subpart
implement statutory directives that either require or permit you to take
action to deny admission to applicants under certain circumstances in
accordance with established standards, as described in this subpart. The
provisions of this subpart do not constrain your authority to screen out
applicants who you determined are unsuitable under your standards for
admission.
(b) Terminating tenancy. You are authorized to terminate tenancy of
tenants, in accordance with your leases and landlord-tenant law for the
programs covered by this part. The provisions of this subpart implement
statutory directives that either require or permit you to terminate
tenancy under certain circumstances, as provided in 42 U.S.C. 1437f,
1437n, and 13662, in accordance with established standards, as described
in this subpart. You retain authority to terminate tenancy on any basis
that is otherwise authorized.
Sec. 5.852 What discretion do I have in screening and eviction actions?
(a) General. If the law and regulation permit you to take an action
but do not require action to be taken, you may take or not take the
action in accordance with your standards for admission and eviction.
Consistent with the application of your admission and
[[Page 116]]
eviction standards, you may consider all of the circumstances relevant
to a particular admission or eviction case, such as:
(1) The seriousness of the offending action;
(2) The effect on the community of denial or termination or the
failure of the responsible entity to take such action;
(3) The extent of participation by the leaseholder in the offending
action;
(4) The effect of denial of admission or termination of tenancy on
household members not involved in the offending action;
(5) The demand for assisted housing by families who will adhere to
lease responsibilities;
(6) The extent to which the leaseholder has shown personal
responsibility and taken all reasonable steps to prevent or mitigate the
offending action; and
(7) The effect of the responsible entity's action on the integrity
of the program.
(b) Exclusion of culpable household member. You may require an
applicant (or tenant) to exclude a household member in order to be
admitted to the housing program (or continue to reside in the assisted
unit), where that household member has participated in or been culpable
for action or failure to act that warrants denial (or termination).
(c) Consideration of rehabilitation. (1) In determining whether to
deny admission or terminate tenancy for illegal use of drugs or alcohol
abuse by a household member who is no longer engaged in such behavior,
you may consider whether such household member is participating in or
has successfully completed a supervised drug or alcohol rehabilitation
program, or has otherwise been rehabilitated successfully (42 U.S.C.
13661). For this purpose, you may require the applicant or tenant to
submit evidence of the household member's current participation in, or
successful completion of, a supervised drug or alcohol rehabilitation
program or evidence of otherwise having been rehabilitated successfully.
(2) If rehabilitation is not an element of the eligibility
determination (see Sec. 5.854(a)(1) for the case where it must be
considered), you may choose not to consider whether the person has been
rehabilitated.
(d) Length of period of mandatory prohibition on admission. If a
statute requires that you prohibit admission of persons for a prescribed
period of time after some disqualifying behavior or event, you may apply
that prohibition for a longer period of time.
(e) Nondiscrimination limitation. Your admission and eviction
actions must be consistent with fair housing and equal opportunity
provisions of Sec. 5.105.
Sec. 5.853 Definitions.
(a) Terms found elsewhere. The following terms are defined in
subpart A of this part: 1937 Act, covered person, drug, drug-related
criminal activity, federally assisted housing, guest, household, HUD,
other person under the tenant's control, premises, public housing,
public housing agency (PHA), Section 8, violent criminal activity.
(b) Additional terms used in this part are as follows.
Currently engaging in. With respect to behavior such as illegal use
of a drug, other drug-related criminal activity, or other criminal
activity, currently engaging in means that the individual has engaged in
the behavior recently enough to justify a reasonable belief that the
individual's behavior is current.
Owner. The owner of federally assisted housing.
Responsible entity. For the Section 8 project-based certificate or
project-based voucher program (part 983 of this title) and the Section 8
moderate rehabilitation program (part 882 of this title), responsible
entity means the PHA administering the program under an Annual
Contributions Contract with HUD. For all other federally assisted
housing, the responsible entity means the owner of the housing.
Denying Admissions
Sec. 5.854 When must I prohibit admission of individuals who
have engaged in drug-related criminal activity?
(a) You must prohibit admission to your federally assisted housing
of an applicant for three years from the date of eviction if any
household member
[[Page 117]]
has been evicted from federally assisted housing for drug-related
criminal activity. However, you may admit the household if:
(1) The evicted household member who engaged in drug-related
criminal activity has successfully completed an approved supervised drug
rehabilitation program; or
(2) The circumstances leading to the eviction no longer exist (for
example, the criminal household member has died or is imprisoned).
(b) You must establish standards that prohibit admission of a
household to federally assisted housing if:
(1) You determine that any household member is currently engaging in
illegal use of a drug; or
(2) You determine that you have reasonable cause to believe that a
household member's illegal use or a pattern of illegal use of a drug may
interfere with the health, safety, or right to peaceful enjoyment of the
premises by other residents.
Sec. 5.855 When am I specifically authorized to prohibit admission
of individuals who have engaged in criminal activity?
(a) You may prohibit admission of a household to federally assisted
housing under your standards if you determine that any household member
is currently engaging in, or has engaged in during a reasonable time
before the admission decision:
(1) Drug-related criminal activity;
(2) Violent criminal activity;
(3) Other criminal activity that would threaten the health, safety,
or right to peaceful enjoyment of the premises by other residents; or
(4) Other criminal activity that would threaten the health or safety
of the PHA or owner or any employee, contractor, subcontractor or agent
of the PHA or owner who is involved in the housing operations.
(b) You may establish a period before the admission decision during
which an applicant must not have engaged in the activities specified in
paragraph (a) of this section (reasonable time).
(c) If you previously denied admission to an applicant because of a
determination concerning a member of the household under paragraph (a)
of this section, you may reconsider the applicant if you have sufficient
evidence that the members of the household are not currently engaged in,
and have not engaged in, such criminal activity during a reasonable
period, determined by you, before the admission decision.
(1) You would have sufficient evidence if the household member
submitted a certification that she or he is not currently engaged in and
has not engaged in such criminal activity during the specified period
and provided supporting information from such sources as a probation
officer, a landlord, neighbors, social service agency workers and
criminal records, which you verified. (See subpart J of this part for
one method of checking criminal records.)
(2) For purposes of this section, a household member is currently
engaged in the criminal activity if the person has engaged in the
behavior recently enough to justify a reasonable belief that the
behavior is current.
Sec. 5.856 When must I prohibit admission of sex offenders?
You must establish standards that prohibit admission to federally
assisted housing if any member of the household is subject to a lifetime
registration requirement under a State sex offender registration
program. In the screening of applicants, you must perform necessary
criminal history background checks in the State where the housing is
located and in other States where the household members are known to
have resided. (See Sec. 5.905.)
Sec. 5.857 When must I prohibit admission of alcohol abusers?
You must establish standards that prohibit admission to federally
assisted housing if you determine you have reasonable cause to believe
that a household member's abuse or pattern of abuse of alcohol
interferes with the health, safety, or right to peaceful enjoyment of
the premises by other residents.
Terminating Tenancy
Sec. 5.858 What authority do I have to evict drug criminals?
The lease must provide that drug-related criminal activity engaged
in on
[[Page 118]]
or near the premises by any tenant, household member, or guest, and any
such activity engaged in on the premises by any other person under the
tenant's control, is grounds for you to terminate tenancy. In addition,
the lease must allow you to evict a family when you determine that a
household member is illegally using a drug or when you determine that a
pattern of illegal use of a drug interferes with the health, safety, or
right to peaceful enjoyment of the premises by other residents.
Sec. 5.859 When am I specifically authorized to evict other criminals?
(a) Threat to other residents. The lease must provide that the owner
may terminate tenancy for any of the following types of criminal
activity by a covered person:
(1) Any criminal activity that threatens the health, safety, or
right to peaceful enjoyment of the premises by other residents
(including property management staff residing on the premises); or
(2) Any criminal activity that threatens the health, safety, or
right to peaceful enjoyment of their residences by persons residing in
the immediate vicinity of the premises.
(b) Fugitive felon or parole violator. The lease must provide that
you may terminate the tenancy during the term of the lease if a tenant
is:
(1) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that, in
the case of the State of New Jersey, is a high misdemeanor; or
(2) Violating a condition of probation or parole imposed under
Federal or State law.
Sec. 5.860 When am I specifically authorized to evict alcohol abusers?
The lease must provide that you may terminate the tenancy if you
determine that a household member's abuse or pattern of abuse of alcohol
threatens the health, safety, or right to peaceful enjoyment of the
premises by other residents.
Sec. 5.861 What evidence of criminal activity must I have to evict?
You may terminate tenancy and evict the tenant through judicial
action for criminal activity by a covered person in accordance with this
subpart if you determine that the covered person has engaged in the
criminal activity, regardless of whether the covered person has been
arrested or convicted for such activity and without satisfying a
criminal conviction standard of proof of the activity.
Subpart J_Access to Criminal Records and Information
Source: 66 FR 28794, May 24, 2001, unless otherwise noted.
Sec. 5.901 To what criminal records and searches does this subpart apply?
(a) General criminal records searches. This subpart applies to
criminal conviction background checks by PHAs that administer the
Section 8 and public housing programs when they obtain criminal
conviction records, under the authority of section 6(q) of the 1937 Act
(42 U.S.C. 1437d(q)), from a law enforcement agency to prevent admission
of criminals to public housing and Section 8 housing and to assist in
lease enforcement and eviction.
(b) Sex offender registration records searches. This subpart applies
to PHAs that administer the Section 8 and public housing programs when
they obtain sex offender registration information from State and local
agencies, under the authority of 42 U.S.C. 13663, to prevent admission
of dangerous sex offenders to federally assisted housing.
(c) Excluded records searches. The provisions of this subpart do not
apply to criminal conviction information or sex offender information
searches by a PHA or others of information from law enforcement agencies
or other sources other than as provided under this subpart.
Sec. 5.902 Definitions.
(a) Terms found elsewhere. The following terms used in this subpart
are defined in subpart A of this part: 1937 Act, drug, federally
assisted housing,
[[Page 119]]
household, HUD, public housing, public housing agency (PHA), Section 8.
(b) Additional terms used in this subpart are as follows:
Adult. A person who is 18 years of age or older, or who has been
convicted of a crime as an adult under any Federal, State, or tribal
law.
Covered housing. Public housing, project-based assistance under
section 8 (including new construction and substantial rehabilitation
projects), and tenant-based assistance under section 8.
Law enforcement agency. The National Crime Information Center
(NCIC), police departments and other law enforcement agencies that hold
criminal conviction records.
Owner. The owner of federally assisted housing.
Responsible entity. For the public housing program, the Section 8
tenant-based assistance program (part 982 of this title), the Section 8
project-based certificate or project-based voucher program (part 983 of
this title), and the Section 8 moderate rehabilitation program (part 882
of this title), responsible entity means the PHA administering the
program under an Annual Contributions Contract with HUD. For all other
Section 8 programs, responsible entity means the Section 8 owner.
Sec. 5.903 What special authority is there to obtain access to
criminal records?
(a) Authority. If you are a PHA that administers the Section 8
program and/or the public housing program, this section authorizes you
to obtain criminal conviction records from a law enforcement agency, as
defined in Sec. 5.902. You may use the criminal conviction records that
you obtain from a law enforcement agency under the authority of this
section to screen applicants for admission to covered housing programs
and for lease enforcement or eviction of families residing in public
housing or receiving Section 8 project-based assistance.
(b) Consent for release of criminal conviction records. (1) In order
to obtain access to records under this section, as a responsible entity
you must require every applicant family to submit a consent form signed
by each adult household member.
(2) By execution of the consent form, an adult household member
consents that:
(i) Any law enforcement agency may release criminal conviction
records concerning the household member to a PHA in accordance with this
section;
(ii) The PHA may receive the criminal conviction records from a law
enforcement agency, and may use the records in accordance with this
section.
(c) Procedure for PHA. (1) When the law enforcement agency receives
your request, the law enforcement agency must promptly release to you a
certified copy of any criminal conviction records concerning the
household member in the possession or control of the law enforcement
agency. NCIC records must be provided in accordance with NCIC
procedures.
(2) The law enforcement agency may charge you a reasonable fee for
releasing criminal conviction records.
(d) Owner access to criminal records--(1) General. (i) If an owner
submits a request to the PHA for criminal records concerning an adult
member of an applicant or resident household, in accordance with the
provisions of paragraph (d) of this section, the PHA must request the
criminal conviction records from the appropriate law enforcement agency
or agencies, as determined by the PHA.
(ii) If the PHA receives criminal conviction records requested by an
owner, the PHA must determine whether criminal action by a household
member, as shown by such criminal conviction records, may be a basis for
applicant screening, lease enforcement or eviction, as applicable in
accordance with HUD regulations and the owner criteria.
(iii) The PHA must notify the owner whether the PHA has received
criminal conviction records concerning the household member, and of its
determination whether such criminal conviction records may be a basis
for applicant screening, lease enforcement or eviction. However, except
as provided in paragraph (e)(2)(ii) of this section, the PHA must not
disclose the household member's criminal conviction
[[Page 120]]
record or the content of that record to the owner.
(2) Screening. If you are an owner of covered housing, you may
request that the PHA in the jurisdiction of the property obtain criminal
conviction records of an adult household member from a law enforcement
agency on your behalf for the purpose of screening applicants.
(i) Your request must include a copy of the consent form, signed by
the household member.
(ii) Your request must include your standards for prohibiting
admission of drug criminals in accordance with Sec. 5.854, and for
prohibiting admission of other criminals in accordance with Sec. 5.855.
(3) Eviction or lease enforcement. If you are an owner of a unit
with Section 8 project-based assistance, you may request that the PHA in
the location of the project obtain criminal conviction records of a
household member from an appropriate law enforcement agency on your
behalf in connection with lease enforcement or eviction.
(i) Your request must include a copy of the consent form, signed by
the household member.
(ii) If you intend to use the PHA determination regarding any such
criminal conviction records in connection with eviction, your request
must include your standards for evicting drug criminals in accordance
with Sec. 5.857, and for evicting other criminals in accordance with
Sec. 5.858.
(iii) If you intend to use the PHA determination regarding any such
criminal conviction records for lease enforcement other than eviction,
your request must include your standards for lease enforcement because
of criminal activity by members of a household.
(4) Fees. If an owner requests a PHA to obtain criminal conviction
records in accordance with this section, the PHA may charge the owner
reasonable fees for making the request on behalf of the owner and for
taking other actions for the owner. The PHA may require the owner to
reimburse costs incurred by the PHA, including reimbursement of any fees
charged to the PHA by the law enforcement agency, the PHA's own related
staff and administrative costs. The owner may not pass along to the
applicant or tenant the costs of a criminal records check.
(e) Permitted use and disclosure of criminal conviction records
received by PHA--(1) Use of records. Criminal conviction records
received by a PHA from a law enforcement agency in accordance with this
section may only be used for the following purposes:
(i) Applicant screening. (A) PHA screening of applicants for
admission to public housing (part 960 of this title);
(B) PHA screening of applicants for admission to the Housing Choice
Voucher Program (section 8 tenant-based assistance) (part 982 of this
title);
(C) PHA screening of applicants for admission to the Section 8
moderate rehabilitation program (part 882 of this title); or the Section
8 project-based certificate or project-based voucher program (part 983
of this title); or
(D) PHA screening concerning criminal conviction of applicants for
admission to Section 8 project-based assistance, at the request of the
owner. (For requirements governing use of criminal conviction records
obtained by a PHA at the request of a Section 8 owner under this
section, see paragraph (d) of this section.)
(ii) Lease enforcement and eviction. (A) PHA enforcement of public
housing leases and PHA eviction of public housing residents;
(B) Enforcement of leases by a Section 8 project owner and eviction
of residents by a Section 8 project owner. (However, criminal conviction
records received by a PHA from a law enforcement agency under this
section may not be used for lease enforcement or eviction of residents
receiving Section 8 tenant-based assistance.)
(2) PHA disclosure of records. (i) A PHA may disclose the criminal
conviction records which the PHA receives from a law enforcement agency
only as follows:
(A) To officers or employees of the PHA, or to authorized
representatives of the PHA who have a job-related need to have access to
the information. For example, if the PHA is seeking to evict a public
housing tenant on the basis of criminal activity as shown in criminal
conviction records provided by a law enforcement agency, the records may
[[Page 121]]
be disclosed to PHA employees performing functions related to the
eviction, or to a PHA hearing officer conducting an administrative
grievance hearing concerning the proposed eviction.
(B) To the owner for use in connection with judicial eviction
proceedings by the owner to the extent necessary in connection with a
judicial eviction proceeding. For example, criminal conviction records
may be included in pleadings or other papers filed in an eviction
action, may be disclosed to parties to the action or the court, and may
be filed in court or offered as evidence.
(ii) This disclosure may be made only if the following conditions
are satisfied:
(A) If the PHA has determined that criminal activity by the
household member as shown by such records received from a law
enforcement agency may be a basis for eviction from a Section 8 unit;
and
(B) If the owner certifies in writing that it will use the criminal
conviction records only for the purpose and only to the extent necessary
to seek eviction in a judicial proceeding of a Section 8 tenant based on
the criminal activity by the household member that is described in the
criminal conviction records.
(iii) The PHA may rely on an owner's certification that the criminal
record is necessary to proceed with a judicial eviction to evict the
tenant based on criminal activity of the identified household member, as
shown in the criminal conviction record.
(iv) Upon disclosure as necessary in connection with judicial
eviction proceedings, the PHA is not responsible for controlling access
to or knowledge of such records after such disclosure.
(f) Opportunity to dispute. If a PHA obtains criminal record
information from a State or local agency under this section showing that
a household member has been convicted of a crime relevant to applicant
screening, lease enforcement or eviction, the PHA must notify the
household of the proposed action to be based on the information and must
provide the subject of the record and the applicant or tenant a copy of
such information, and an opportunity to dispute the accuracy and
relevance of the information. This opportunity must be provided before a
denial of admission, eviction or lease enforcement action on the basis
of such information.
(g) Records management. Consistent with the limitations on
disclosure of records in paragraph (e) of this section, the PHA must
establish and implement a system of records management that ensures that
any criminal record received by the PHA from a law enforcement agency
is:
(1) Maintained confidentially;
(2) Not misused or improperly disseminated; and
(3) Destroyed, once the purpose(s) for which the record was
requested has been accomplished, including expiration of the period for
filing a challenge to the PHA action without institution of a challenge
or final disposition of any such litigation.
(h) Penalties for improper release of information--(1) Criminal
penalty. Conviction for a misdemeanor and imposition of a penalty of not
more than $5,000 is the potential for:
(i) Any person, including an officer, employee, or authorized
representative of any PHA or of any project owner, who knowingly and
willfully requests or obtains any information concerning an applicant
for, or tenant of, covered housing assistance under the authority of
this section under false pretenses; or
(ii) Any person, including an officer, employee, or authorized
representative of any PHA or a project owner, who knowingly and
willfully discloses any such information in any manner to any individual
not entitled under any law to receive the information.
(2) Civil liability. (i) A PHA may be held liable to any applicant
for, or tenant of, covered housing assistance affected by either of the
following:
(A) A negligent or knowing disclosure of criminal records
information obtained under the authority of this section about such
person by an officer, employee, or authorized representative of the PHA
if the disclosure is not authorized by this section; or
(B) Any other negligent or knowing action that is inconsistent with
this section.
(ii) An applicant for, or tenant of, covered housing assistance may
seek
[[Page 122]]
relief against a PHA in these circumstances by bringing a civil action
for damages and such other relief as may be appropriate against the PHA
responsible for such unauthorized action. The United States district
court in which the affected applicant or tenant resides, in which the
unauthorized action occurred, or in which the officer, employee, or
representative alleged to be responsible resides, has jurisdiction.
Appropriate relief may include reasonable attorney's fees and other
litigation costs.
Sec. 5.905 What special authority is there to obtain access to
sex offender registration information?
(a) PHA obligation to obtain sex offender registration information.
(1) A PHA that administers a Section 8 or public housing program under
an Annual Contributions Contract with HUD must carry out background
checks necessary to determine whether a member of a household applying
for admission to any federally assisted housing program is subject to a
lifetime sex offender registration requirement under a State sex
offender registration program. This check must be carried out with
respect to the State in which the housing is located and with respect to
States where members of the applicant household are known to have
resided.
(2) If the PHA requests such information from any State or local
agency responsible for the collection or maintenance of such
information, the State or local agency must promptly provide the PHA
such information in its possession or control.
(3) The State or local agency may charge a reasonable fee for
providing the information.
(b) Owner's request for sex offender registration information--(1)
General. An owner of federally assisted housing that is located in the
jurisdiction of a PHA that administers a Section 8 or public housing
program under an Annual Contributions Contract with HUD may request that
the PHA obtain information necessary to determine whether a household
member is subject to a lifetime registration requirement under a State
sex offender registration requirement.
(2) Procedure. If the request is made in accordance with the
provisions of paragraph (b) of this section:
(i) The PHA must request the information from a State or local
agency;
(ii) The State or local agency must promptly provide the PHA such
information in its possession or control;
(iii) The PHA must determine whether such information may be a basis
for applicant screening, lease enforcement or eviction, based on the
criteria used by the owner as specified in the owner's request, and
inform the owner of the determination.
(iv) The PHA must notify the owner of its determination whether sex
offender registration information received by the PHA under this section
concerning a household member may be a basis for applicant screening,
lease enforcement or eviction in accordance with HUD requirements and
the criteria used by the owner.
(3) Contents of request. As the owner, your request must specify
whether you are asking the PHA to obtain the sex offender registration
information concerning the household member for applicant screening, for
lease enforcement, or for eviction and include the following
information:
(i) Addresses or other information about where members of the
household are known to have lived.
(ii) If you intend to use the PHA determination regarding any such
sex offender registration information for applicant screening, your
request must include your standards in accordance with Sec. 5.855(c)
for prohibiting admission of persons subject to a lifetime sex offender
registration requirement.
(iii) If you intend to use the PHA determination regarding any such
sex offender registration information for eviction, your request must
include your standards for evicting persons subject to a lifetime
registration requirement in accordance with Sec. 5.858.
(iv) If you intend to use the PHA determination regarding any such
sex offender registration information for lease enforcement other than
eviction, your request must include your standards for lease enforcement
because of criminal activity by members of a household.
[[Page 123]]
(4) PHA disclosure of records. The PHA must not disclose to the
owner any sex offender registration information obtained by the PHA
under this section.
(5) Fees. If an owner asks a PHA to obtain sex offender registration
information concerning a household member in accordance with this
section, the PHA may charge the owner reasonable fees for making the
request on behalf of the owner and for taking other actions for the
owner. The PHA may require the owner to reimburse costs incurred by the
PHA, including reimbursement of any fees charged to the PHA by a State
or local agency for releasing the information, the PHA's own related
staff and administrative costs. The owner may not pass along to the
applicant or tenant the costs of a sex offender registration records
check.
(c) Records management. (1) The PHA must establish and implement a
system of records management that ensures that any sex offender
registration information record received by the PHA from a State or
local agency under this section is:
(i) Maintained confidentially;
(ii) Not misused or improperly disseminated; and
(iii) Destroyed, once the purpose for which the record was requested
has been accomplished, including expiration of the period for filing a
challenge to the PHA action without institution of a challenge or final
disposition of any such litigation.
(2) The records management requirements do not apply to information
that is public information, or is obtained by a PHA other than under
this section.
(d) Opportunity to dispute. If a PHA obtains sex offender
registration information from a State or local agency under paragraph
(a) of this section showing that a household member is subject to a
lifetime sex offender registration requirement, the PHA must notify the
household of the proposed action to be based on the information and must
provide the subject of the record, and the applicant or tenant, with a
copy of such information, and an opportunity to dispute the accuracy and
relevance of the information. This opportunity must be provided before a
denial of admission, eviction or lease enforcement action on the basis
of such information.
Subpart K_Application, Registration, and Submission Requirements
Source: 69 FR 15673, Mar. 26, 2004, unless otherwise noted.
Sec. 5.1001 Applicability.
This subpart applies to all applicants for HUD grants, cooperative
agreements, capital fund or operating fund subsidy, capital advance, or
other assistance under HUD programs, including grant programs that are
classified by OMB as including formula grant programs or activities, but
excluding FHA insurance and loan guarantees that are not associated with
a grant program or grant award.
Sec. 5.1003 Use of a universal identifier for organizations applying
for HUD grants.
(a) Every application for a new or renewal of a grant, cooperative
agreement, capital fund or operating fund subsidy, capital advance, or
other assistance, including an application or plan under a grant program
that is classified by OMB as including formula grant programs, must
include a unique entity identifier number for the applicant.
(b)(1) Applicants or groups of applicants under a consortium
arrangement must have a unique entity identifier for the organization
that is submitting the application for federal assistance as the lead
applicant on behalf of the other applicants. If each organization is
submitting a separate application as part of a group of applications,
then each organization must include its unique entity identifier with
its application submission.
(2) If an organization is submitting an application as a sponsor or
on behalf of other applicants, and the other entities will be receiving
funds directly from HUD, then the applicant or sponsor must submit an
application for funding that includes the unique entity identifier of
each applicant that would receive funds directly from HUD.
(3) If an organization is managing funds for a group of
organizations, a
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unique entity identifier must be submitted for the managing
organization, if it is drawing down funds directly from HUD.
(4) If an organization is drawing down funds directly from HUD and
subsequently turning the funds over to a management organization, then
the management organization must obtain a unique entity identifier and
submit the number to HUD.
(c) Individuals who would personally receive a grant or other
assistance from HUD, independent from any business or nonprofit
organization with which they may operate or participate, are exempt from
this requirement.
(d) In cases where individuals apply for funding, but the funding
will be awarded to an institution or other entity on the individual's
behalf, the institution or entity must obtain a unique entity identifier
and the individual must submit the institution's unique entity
identifier number with the application.
(e) Unless an exemption is granted by OMB, HUD will not consider an
application as complete until a valid unique entity identifier is
provided by the applicant. For classes of grants and grantees subject to
this part, exceptions to this rule must be submitted to OMB for approval
in accordance with procedures prescribed by the Department.
[69 FR 15673, Mar. 26, 2004, as amended at 80 FR 75934, Dec. 7, 2015]
Sec. 5.1004 System of award management.
Applicants for HUD financial assistance that are subject to this
subpart are required to register with the System of Award Management
(SAM) and have an active registration in SAM in accordance with 2 CFR
part 25, appendix A in order for HUD to obligate funds and for an
awardee to receive an award of funds from HUD.
[75 FR 41089, July 15, 2010, as amended at 80 FR 75934, Dec. 7, 2015]
Sec. 5.1005 Electronic submission of applications for grants and
other financial assistance.
Applicants described under 24 CFR 5.1001 are required to submit
electronic applications or plans for grants and other financial
assistance in response to any application that HUD has placed on the
www.grants.gov/Apply Web site or its successor. The HUD Assistant
Secretary, General Deputy Assistant Secretary or, the individual
authorized to perform duties and responsibilities of these positions,
with authority over the specific program for which the waiver is sought,
may in writing, waive the electronic submission requirement for an
applicant on the basis of good cause.
[70 FR 77294, Dec. 29, 2005]
Subpart L_Protection for Victims of Domestic Violence, Dating Violence,
Sexual Assault, or Stalking
Source: 81 FR 80798, Nov. 16, 2016, unless otherwise noted.
Sec. 5.2001 Applicability.
(a) This subpart addresses the protections for victims of domestic
violence, dating violence, sexual assault, or stalking who are applying
for, or are the beneficiaries of, assistance under a HUD program covered
by the Violence Against Women Act (VAWA), as amended (42 U.S.C. 13925
and 42 U.S.C. 14043e et seq.) (``covered housing program,'' as defined
in Sec. 5.2003). Notwithstanding the title of the statute, protections
are not limited to women but cover victims of domestic violence, dating
violence, sexual assault, and stalking, regardless of sex, gender
identity, or sexual orientation. Consistent with the nondiscrimination
and equal opportunity requirements at 24 CFR 5.105(a), victims cannot be
discriminated against on the basis of any protected characteristic,
including race, color, national origin, religion, sex, familial status,
disability, or age. HUD programs must also be operated consistently with
HUD's Equal Access Rule at Sec. 5.105(a)(2), which requires that HUD-
assisted and HUD-insured housing are made available to all otherwise
eligible individuals and families regardless of actual or perceived
sexual orientation, gender identity, or marital status.
(b)(1) The applicable assistance provided under a covered housing
program
[[Page 125]]
generally consists of two types of assistance (one or both may be
provided): Tenant-based rental assistance, which is rental assistance
that is provided to the tenant; and project-based assistance, which is
assistance that attaches to the unit in which the tenant resides. For
project-based assistance, the assistance may consist of such assistance
as operating assistance, development assistance, and mortgage interest
rate subsidy.
(2) The regulations in this subpart are supplemented by the specific
regulations for the HUD-covered housing programs listed in Sec. 5.2003.
The program-specific regulations address how certain VAWA requirements
are to be implemented and whether they can be implemented (for example,
reasonable time to establish eligibility for assistance as provided in
Sec. 5.2009(b)) for the applicable covered housing program, given the
statutory and regulatory framework for the program. When there is
conflict between the regulations of this subpart and the program-
specific regulations, the program-specific regulations govern. Where
assistance is provided under more than one covered housing program and
there is a conflict between VAWA protections or remedies under those
programs, the individual seeking the VAWA protections or remedies may
choose to use the protections or remedies under any or all of those
programs, as long as the protections or remedies would be feasible and
permissible under each of the program statutes.
Sec. 5.2003 Definitions.
The definitions of PHA, HUD, household, and other person under the
tenant's control are defined in subpart A of this part. As used in this
subpart L:
Actual and imminent threat refers to a physical danger that is real,
would occur within an immediate time frame, and could result in death or
serious bodily harm. In determining whether an individual would pose an
actual and imminent threat, the factors to be considered include: The
duration of the risk, the nature and severity of the potential harm, the
likelihood that the potential harm will occur, and the length of time
before the potential harm would occur.
Affiliated individual, with respect to an individual, means:
(1) A spouse, parent, brother, sister, or child of that individual,
or a person to whom that individual stands in the place of a parent or
guardian (for example, the affiliated individual is a person in the
care, custody, or control of that individual); or
(2) Any individual, tenant, or lawful occupant living in the
household of that individual.
Bifurcate means to divide a lease as a matter of law, subject to the
permissibility of such process under the requirements of the applicable
HUD-covered program and State or local law, such that certain tenants or
lawful occupants can be evicted or removed and the remaining tenants or
lawful occupants can continue to reside in the unit under the same lease
requirements or as may be revised depending upon the eligibility for
continued occupancy of the remaining tenants and lawful occupants.
Covered housing program consists of the following HUD programs:
(1) Section 202 Supportive Housing for the Elderly (12 U.S.C.
1701q), with implementing regulations at 24 CFR part 891.
(2) Section 811 Supportive Housing for Persons with Disabilities (42
U.S.C. 8013), with implementing regulations at 24 CFR part 891.
(3) Housing Opportunities for Persons With AIDS (HOPWA) program (42
U.S.C. 12901 et seq.), with implementing regulations at 24 CFR part 574.
(4) HOME Investment Partnerships (HOME) program (42 U.S.C. 12741 et
seq.), with implementing regulations at 24 CFR part 92.
(5) Homeless programs under title IV of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11360 et seq.), including the Emergency
Solutions Grants program (with implementing regulations at 24 CFR part
576), the Continuum of Care program (with implementing regulations at 24
CFR part 578), and the Rural Housing Stability Assistance program (with
regulations forthcoming).
(6) Multifamily rental housing under section 221(d)(3) of the
National Housing Act (12 U.S.C. 17151(d)) with a below-market interest
rate (BMIR)
[[Page 126]]
pursuant to section 221(d)(5), with implementing regulations at 24 CFR
part 221.
(7) Multifamily rental housing under section 236 of the National
Housing Act (12 U.S.C. 1715z-1), with implementing regulations at 24 CFR
part 236.
(8) HUD programs assisted under the United States Housing Act of
1937 (42 U.S.C. 1437 et seq.); specifically, public housing under
section 6 of the 1937 Act (42 U.S.C. 1437d) (with regulations at 24 CFR
Chapter IX), tenant-based and project-based rental assistance under
section 8 of the 1937 Act (42 U.S.C. 1437f) (with regulations at 24 CFR
chapters VIII and IX), and the Section 8 Moderate Rehabilitation Single
Room Occupancy (with implementing regulations at 24 CFR part 882,
subpart H).
(9) The Housing Trust Fund (12 U.S.C. 4568) (with implementing
regulations at 24 CFR part 93).
Covered housing provider refers to the individual or entity under a
covered housing program that has responsibility for the administration
and/or oversight of VAWA protections and includes PHAs, sponsors,
owners, mortgagors, managers, State and local governments or agencies
thereof, nonprofit or for-profit organizations or entities. The program-
specific regulations for the covered housing programs identify the
individual or entity that carries out the duties and responsibilities of
the covered housing provider as set forth in part 5, subpart L. For any
of the covered housing programs, it is possible that there may be more
than one covered housing provider; that is, depending upon the VAWA duty
or responsibility to be performed by a covered housing provider, the
covered housing provider may not always be the same individual or
entity.
Dating violence means violence committed by a person:
(1) Who is or has been in a social relationship of a romantic or
intimate nature with the victim; and
(2) Where the existence of such a relationship shall be determined
based on a consideration of the following factors:
(i) The length of the relationship;
(ii) The type of relationship; and
(iii) The frequency of interaction between the persons involved in
the relationship.
Domestic violence includes felony or misdemeanor crimes of violence
committed by a current or former spouse or intimate partner of the
victim, by a person with whom the victim shares a child in common, by a
person who is cohabitating with or has cohabitated with the victim as a
spouse or intimate partner, by a person similarly situated to a spouse
of the victim under the domestic or family violence laws of the
jurisdiction receiving grant monies, or by any other person against an
adult or youth victim who is protected from that person's acts under the
domestic or family violence laws of the jurisdiction. The term ``spouse
or intimate partner of the victim'' includes a person who is or has been
in a social relationship of a romantic or intimate nature with the
victim, as determined by the length of the relationship, the type of the
relationship, and the frequency of interaction between the persons
involved in the relationship.
Sexual assault means any nonconsensual sexual act proscribed by
Federal, tribal, or State law, including when the victim lacks capacity
to consent.
Stalking means engaging in a course of conduct directed at a
specific person that would cause a reasonable person to:
(1) Fear for the person's individual safety or the safety of others;
or
(2) Suffer substantial emotional distress.
VAWA means the Violence Against Women Act of 1994, as amended (42
U.S.C. 13925 and 42 U.S.C. 14043e et seq.).
Sec. 5.2005 VAWA protections.
(a) Notification of occupancy rights under VAWA, and certification
form. (1) A covered housing provider must provide to each of its
applicants and to each of its tenants the notice of occupancy rights and
the certification form as described in this section:
(i) A ``Notice of Occupancy Rights under the Violence Against Women
Act,'' as prescribed and in accordance with directions provided by HUD,
that explains the VAWA protections under this subpart, including the
right to
[[Page 127]]
confidentiality, and any limitations on those protections; and
(ii) A certification form, in a form approved by HUD, to be
completed by the victim to document an incident of domestic violence,
dating violence, sexual assault or stalking, and that:
(A) States that the applicant or tenant is a victim of domestic
violence, dating violence, sexual assault, or stalking;
(B) States that the incident of domestic violence, dating violence,
sexual assault, or stalking that is the ground for protection under this
subpart meets the applicable definition for such incident under Sec.
5.2003; and
(C) Includes the name of the individual who committed the domestic
violence, dating violence, sexual assault, or stalking, if the name is
known and safe to provide.
(2) The notice required by paragraph (a)(1)(i) of this section and
certification form required by paragraph (a)(1)(ii) of this section must
be provided to an applicant or tenant no later than at each of the
following times:
(i) At the time the applicant is denied assistance or admission
under a covered housing program;
(ii) At the time the individual is provided assistance or admission
under the covered housing program;
(iii) With any notification of eviction or notification of
termination of assistance; and
(iv) During the 12-month period following December 16, 2016, either
during the annual recertification or lease renewal process, whichever is
applicable, or, if there will be no recertification or lease renewal for
a tenant during the first year after the rule takes effect, through
other means.
(3) The notice required by paragraph (a)(1)(i) of this section and
the certification form required by paragraph (a)(1)(ii) of this section
must be made available in multiple languages, consistent with guidance
issued by HUD in accordance with Executive Order 13166 (Improving Access
to Services for Persons with Limited English Proficiency, signed August
11, 2000, and published in the Federal Register on August 16, 2000 (at
65 FR 50121).
(4) For the Housing Choice Voucher program under 24 CFR part 982,
the project-based voucher program under 24 CFR part 983, the public
housing admission and occupancy requirements under 24 CFR part 960, and
renewed funding or leases of the Section 8 project-based program under
24 CFR parts 880, 882, 883, 884, 886, as well as project-based section 8
provided in connection with housing under part 891, the HUD-required
lease, lease addendum, or tenancy addendum, as applicable, must include
a description of specific protections afforded to the victims of
domestic violence, dating violence, sexual assault, or stalking, as
provided in this subpart.
(b) Prohibited basis for denial or termination of assistance or
eviction--(1) General. An applicant for assistance or tenant assisted
under a covered housing program may not be denied admission to, denied
assistance under, terminated from participation in, or evicted from the
housing on the basis or as a direct result of the fact that the
applicant or tenant is or has been a victim of domestic violence, dating
violence, sexual assault, or stalking, if the applicant or tenant
otherwise qualifies for admission, assistance, participation, or
occupancy.
(2) Termination on the basis of criminal activity. A tenant in a
covered housing program may not be denied tenancy or occupancy rights
solely on the basis of criminal activity directly relating to domestic
violence, dating violence, sexual assault, or stalking if:
(i) The criminal activity is engaged in by a member of the household
of the tenant or any guest or other person under the control of the
tenant, and
(ii) The tenant or an affiliated individual of the tenant is the
victim or threatened victim of such domestic violence, dating violence,
sexual assault or stalking.
(c) Construction of lease terms and terms of assistance. An incident
of actual or threatened domestic violence, dating violence, sexual
assault, or stalking shall not be construed as:
(1) A serious or repeated violation of a lease executed under a
covered housing program by the victim or threatened victim of such
incident; or
(2) Good cause for terminating the assistance, tenancy, or occupancy
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rights under a covered housing program of the victim or threatened
victim of such incident.
(d) Limitations of VAWA protections. (1) Nothing in this section
limits the authority of a covered housing provider, when notified of a
court order, to comply with a court order with respect to:
(i) The rights of access or control of property, including civil
protection orders issued to protect a victim of domestic violence,
dating violence, sexual assault, or stalking; or
(ii) The distribution or possession of property among members of a
household.
(2) Nothing in this section limits any available authority of a
covered housing provider to evict or terminate assistance to a tenant
for any violation not premised on an act of domestic violence, dating
violence, sexual assault, or stalking that is in question against the
tenant or an affiliated individual of the tenant. However, the covered
housing provider must not subject the tenant, who is or has been a
victim of domestic violence, dating violence, sexual assault, or
stalking, or is affiliated with an individual who is or has been a
victim of domestic violence, dating violence, sexual assault or
stalking, to a more demanding standard than other tenants in determining
whether to evict or terminate assistance.
(3) Nothing in this section limits the authority of a covered
housing provider to terminate assistance to or evict a tenant under a
covered housing program if the covered housing provider can demonstrate
an actual and imminent threat to other tenants or those employed at or
providing service to property of the covered housing provider would be
present if that tenant or lawful occupant is not evicted or terminated
from assistance. In this context, words, gestures, actions, or other
indicators will be considered an ``actual and imminent threat'' if they
meet the standards provided in the definition of ``actual and imminent
threat'' in Sec. 5.2003.
(4) Any eviction or termination of assistance, as provided in
paragraph (d)(3) of this section should be utilized by a covered housing
provider only when there are no other actions that could be taken to
reduce or eliminate the threat, including, but not limited to,
transferring the victim to a different unit, barring the perpetrator
from the property, contacting law enforcement to increase police
presence or develop other plans to keep the property safe, or seeking
other legal remedies to prevent the perpetrator from acting on a threat.
Restrictions predicated on public safety cannot be based on stereotypes,
but must be tailored to particularized concerns about individual
residents.
(e) Emergency transfer plan. Each covered housing provider, as
identified in the program-specific regulations for the covered housing
program, shall adopt an emergency transfer plan, no later than June 14,
2017 based on HUD's model emergency transfer plan, in accordance with
the following:
(1) For purposes of this section, the following definitions apply:
(i) Internal emergency transfer refers to an emergency relocation of
a tenant to another unit where the tenant would not be categorized as a
new applicant; that is, the tenant may reside in the new unit without
having to undergo an application process.
(ii) External emergency transfer refers to an emergency relocation
of a tenant to another unit where the tenant would be categorized as a
new applicant; that is the tenant must undergo an application process in
order to reside in the new unit.
(iii) Safe unit refers to a unit that the victim of domestic
violence, dating violence, sexual assault, or stalking believes is safe.
(2) The emergency transfer plan must provide that a tenant receiving
rental assistance through, or residing in a unit subsidized under, a
covered housing program who is a victim of domestic violence, dating
violence, sexual assault, or stalking qualifies for an emergency
transfer if:
(i) The tenant expressly requests the transfer; and
(ii)(A) The tenant reasonably believes there is a threat of imminent
harm from further violence if the tenant remains within the same
dwelling unit that the tenant is currently occupying; or
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(B) In the case of a tenant who is a victim of sexual assault,
either the tenant reasonably believes there is a threat of imminent harm
from further violence if the tenant remains within the same dwelling
unit that the tenant is currently occupying, or the sexual assault
occurred on the premises during the 90-calendar-day period preceding the
date of the request for transfer.
(3) The emergency transfer plan must detail the measure of any
priority given to tenants who qualify for an emergency transfer under
VAWA in relation to other categories of tenants seeking transfers and
individuals seeking placement on waiting lists.
(4) The emergency transfer plan must incorporate strict
confidentiality measures to ensure that the covered housing provider
does not disclose the location of the dwelling unit of the tenant to a
person who committed or threatened to commit an act of domestic
violence, dating violence, sexual assault, or stalking against the
tenant.
(5) The emergency transfer plan must allow a tenant to make an
internal emergency transfer under VAWA when a safe unit is immediately
available.
(6) The emergency transfer plan must describe policies for assisting
a tenant in making an internal emergency transfer under VAWA when a safe
unit is not immediately available, and these policies must ensure that
requests for internal emergency transfers under VAWA receive, at a
minimum, any applicable additional priority that housing providers may
already provide to other types of emergency transfer requests.
(7) The emergency transfer plan must describe reasonable efforts the
covered housing provider will take to assist a tenant who wishes to make
an external emergency transfer when a safe unit is not immediately
available. The plan must include policies for assisting a tenant who is
seeking an external emergency transfer under VAWA out of the covered
housing provider's program or project, and a tenant who is seeking an
external emergency transfer under VAWA into the covered housing
provider's program or project. These policies may include:
(i) Arrangements, including memoranda of understanding, with other
covered housing providers to facilitate moves; and
(ii) Outreach activities to organizations that assist or provide
resources to victims of domestic violence, dating violence, sexual
assault, or stalking.
(8) Nothing may preclude a tenant from seeking an internal emergency
transfer and an external emergency transfer concurrently if a safe unit
is not immediately available.
(9) Where applicable, the emergency transfer plan must describe
policies for a tenant who has tenant-based rental assistance and who
meets the requirements of paragraph (e)(2) of this section to move
quickly with that assistance.
(10) The emergency transfer plan may require documentation from a
tenant seeking an emergency transfer, provided that:
(i) The tenant's submission of a written request to the covered
housing provider, where the tenant certifies that they meet the criteria
in paragraph (e)(2)(ii) of this section, shall be sufficient
documentation of the requirements in paragraph (e)(2) of this section;
(ii) The covered housing provider may, at its discretion, ask an
individual seeking an emergency transfer to document the occurrence of
domestic violence, dating violence, sexual assault, or stalking, in
accordance with Sec. 5.2007, for which the individual is seeking the
emergency transfer, if the individual has not already provided
documentation of that occurrence; and
(iii) No other documentation is required to qualify the tenant for
an emergency transfer.
(11) The covered housing provider must make its emergency transfer
plan available upon request and, when feasible, must make its plan
publicly available.
(12) The covered housing provider must keep a record of all
emergency transfers requested under its emergency transfer plan, and the
outcomes of such requests, and retain these records for a period of
three years, or
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for a period of time as specified in program regulations. Requests and
outcomes of such requests must be reported to HUD annually.
(13) Nothing in this paragraph (e) may be construed to supersede any
eligibility or other occupancy requirements that may apply under a
covered housing program.
Sec. 5.2007 Documenting the occurrence of domestic violence, dating
violence, sexual assault, or stalking.
(a) Request for documentation. (1) Under a covered housing program,
if an applicant or tenant represents to the covered housing provider
that the individual is a victim of domestic violence, dating violence,
sexual assault, or stalking entitled to the protections under Sec.
5.2005, or remedies under Sec. 5.2009, the covered housing provider may
request, in writing, that the applicant or tenant submit to the covered
housing provider the documentation specified in paragraph (b)(1) of this
section.
(2)(i) If an applicant or tenant does not provide the documentation
requested under paragraph (a)(1) of this section within 14 business days
after the date that the tenant receives a request in writing for such
documentation from the covered housing provider, nothing in Sec. 5.2005
or Sec. 5.2009, which addresses the protections of VAWA, may be
construed to limit the authority of the covered housing provider to:
(A) Deny admission by the applicant or tenant to the covered housing
program;
(B) Deny assistance under the covered housing program to the
applicant or tenant;
(C) Terminate the participation of the tenant in the covered housing
program; or
(D) Evict the tenant, or a lawful occupant that commits a violation
of a lease.
(ii) A covered housing provider may, at its discretion, extend the
14-business-day deadline under paragraph (a)(2)(i) of this section.
(b) Permissible documentation and submission requirements. (1) In
response to a written request to the applicant or tenant from the
covered housing provider, as provided in paragraph (a) of this section,
the applicant or tenant may submit, as documentation of the occurrence
of domestic violence, dating violence, sexual assault, or stalking, any
one of the following forms of documentation, where it is at the
discretion of the tenant or applicant which one of the following forms
of documentation to submit:
(i) The certification form described in Sec. 5.2005(a)(1)(ii); or
(ii) A document:
(A) Signed by an employee, agent, or volunteer of a victim service
provider, an attorney, or medical professional, or a mental health
professional (collectively, ``professional'') from whom the victim has
sought assistance relating to domestic violence, dating violence, sexual
assault, or stalking, or the effects of abuse;
(B) Signed by the applicant or tenant; and
(C) That specifies, under penalty of perjury, that the professional
believes in the occurrence of the incident of domestic violence, dating
violence, sexual assault, or stalking that is the ground for protection
and remedies under this subpart, and that the incident meets the
applicable definition of domestic violence, dating violence, sexual
assault, or stalking under Sec. 5.2003; or
(iii) A record of a Federal, State, tribal, territorial or local law
enforcement agency, court, or administrative agency; or
(iv) At the discretion of a covered housing provider, a statement or
other evidence provided by the applicant or tenant.
(2) If a covered housing provider receives documentation under
paragraph (b)(1) of this section that contains conflicting information
(including certification forms from two or more members of a household
each claiming to be a victim and naming one or more of the other
petitioning household members as the perpetrator), the covered housing
provider may require an applicant or tenant to submit third-party
documentation, as described in paragraphs (b)(1)(ii), (b)(1)(iii), or
(b)(1)(iv) of this section, within 30 calendar days of the date of the
request for the third-party documentation.
[[Page 131]]
(3) Nothing in this paragraph (b) shall be construed to require a
covered housing provider to request that an individual submit
documentation of the status of the individual as a victim of domestic
violence, dating violence, sexual assault, or stalking.
(c) Confidentiality. Any information submitted to a covered housing
provider under this section, including the fact that an individual is a
victim of domestic violence, dating violence, sexual assault, or
stalking (confidential information), shall be maintained in strict
confidence by the covered housing provider.
(1) The covered housing provider shall not allow any individual
administering assistance on behalf of the covered housing provider or
any persons within their employ (e.g., contractors) or in the employ of
the covered housing provider to have access to confidential information
unless explicitly authorized by the covered housing provider for reasons
that specifically call for these individuals to have access to this
information under applicable Federal, State, or local law.
(2) The covered housing provider shall not enter confidential
information described in paragraph (c) of this section into any shared
database or disclose such information to any other entity or individual,
except to the extent that the disclosure is:
(i) Requested or consented to in writing by the individual in a
time-limited release
(ii) Required for use in an eviction proceeding or hearing regarding
termination of assistance from the covered program; or
(iii) Otherwise required by applicable law.
(d) A covered housing provider's compliance with the protections of
Sec. Sec. 5.2005 and 5.2009, based on documentation received under this
section shall not be sufficient to constitute evidence of an
unreasonable act or omission by the covered housing provider. However,
nothing in this paragraph (d) of this section shall be construed to
limit the liability of a covered housing provider for failure to comply
with Sec. Sec. 5.2005 and 5.2009.
Sec. 5.2009 Remedies available to victims of domestic violence,
dating violence, sexual assault, or stalking.
(a) Lease bifurcation. (1) A covered housing provider may in
accordance with paragraph (a)(2) of this section, bifurcate a lease, or
remove a household member from a lease in order to evict, remove,
terminate occupancy rights, or terminate assistance to such member who
engages in criminal activity directly relating to domestic violence,
dating violence, sexual assault, or stalking against an affiliated
individual or other individual:
(i) Without regard to whether the household member is a signatory to
the lease; and
(ii) Without evicting, removing, terminating assistance to, or
otherwise penalizing a victim of such criminal activity who is also a
tenant or lawful occupant.
(2) A lease bifurcation, as provided in paragraph (a)(1) of this
section, shall be carried out in accordance with any requirements or
procedures as may be prescribed by Federal, State, or local law for
termination of assistance or leases and in accordance with any
requirements under the relevant covered housing program.
(b) Reasonable time to establish eligibility for assistance or find
alternative housing following bifurcation of a lease--(1) Applicability.
The reasonable time to establish eligibility under a covered housing
program or find alternative housing is specified in paragraph (b) of
this section, or alternatively in the program-specific regulations
governing the applicable covered housing program. Some covered housing
programs may provide different time frames than are specified in this
paragraph (b), and in such cases, the program-specific regulations
govern.
(2) Reasonable time to establish eligibility assistance or find
alternative housing. (i) If a covered housing provider exercises the
option to bifurcate a lease as provided in paragraph (a) of this
section, and the individual who was evicted or for whom assistance was
terminated was the eligible tenant under the covered housing program,
the covered housing provider shall provide to any remaining tenant or
tenants that were
[[Page 132]]
not already eligible a period of 90 calendar days from the date of
bifurcation of the lease to:
(A) Establish eligibility for the same covered housing program under
which the evicted or terminated tenant was the recipient of assistance
at the time of bifurcation of the lease; or
(B) Establish eligibility under another covered housing program; or
(C) Find alternative housing.
(ii) The 90-calendar-day period provided by paragraph (b)(2) of this
section will not be available to a remaining household member if the
statutory requirements for the covered housing program prohibit it. The
90-day calendar period also will not apply beyond the expiration of a
lease, unless this is permitted by program regulations. The 90-calendar-
day period is the total period provided to a remaining tenant to
establish eligibility under the three options provided in paragraphs
(b)(2)(i)(A), (B), and (C) of this section.
(iii) The covered housing provider may extend the 90-calendar-day
period in paragraph (b)(2) of this section up to an additional 60
calendar days, unless prohibited from doing so by statutory requirements
of the covered program or unless the time period would extend beyond
expiration of the lease.
(c) Efforts to promote housing stability for victims of domestic
violence, dating violence, sexual assault, or stalking. Covered housing
providers are encouraged to undertake whatever actions permissible and
feasible under their respective programs to assist individuals residing
in their units who are victims of domestic violence, dating violence,
sexual assault, or stalking to remain in their units or other units
under the covered housing program or other covered housing providers,
and for the covered housing provider to bear the costs of any transfer,
where permissible.
Sec. 5.2011 Effect on other laws.
(a) Nothing in this subpart shall be construed to supersede any
provision of any Federal, State, or local law that provides greater
protection than this section for victims of domestic violence, dating
violence, sexual assault, or stalking.
(b) All applicable fair housing and civil rights statutes and
requirements apply in the implementation of VAWA requirements. See Sec.
5.105(a).
PART 6_NONDISCRIMINATION IN PROGRAMS AND ACTIVITIES RECEIVING
ASSISTANCE UNDER TITLE I OF THE HOUSING AND COMMUNITY DEVELOPMENT
ACT OF 1974--Table of Contents
Subpart A_General Provisions
Sec.
6.1 Purpose.
6.2 Applicability.
6.3 Definitions.
6.4 Discrimination prohibited.
6.5 Discrimination prohibited--employment.
6.6 Records to be maintained.
Subpart B_Enforcement
6.10 Compliance information.
6.11 Conduct of investigations.
6.12 Procedure for effecting compliance.
6.13 Hearings and appeals.
Authority: 42 U.S.C. 3535(d) 42 U.S.C. 5309.
Source: 64 FR 3797, Jan. 25, 1999, unless otherwise noted.
Subpart A_General Provisions
Sec. 6.1 Purpose.
The purpose of this part is to implement the provisions of section
109 of title I of the Housing and Community Development Act of 1974
(Title I) (42 U.S.C. 5309). Section 109 provides that no person in the
United States shall, on the ground of race, color, national origin,
religion, or sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity funded in whole or in part with Federal financial assistance.
Section 109 does not directly prohibit discrimination on the bases of
age or disability, and the regulations in this part 6 do not apply to
age or disability discrimination in Title I programs. Instead, section
109 directs that the prohibitions against discrimination on the basis of
age under the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) (Age
Discrimination Act) and the prohibitions against discrimination on the
basis of disability under section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794)
[[Page 133]]
(Section 504) apply to programs or activities funded in whole or in part
with Federal financial assistance. Thus, the regulations of 24 CFR part
8, which implement Section 504 for HUD programs, and the regulations of
24 CFR part 146, which implement the Age Discrimination Act for HUD
programs, apply to disability and age discrimination in Title I
programs.
Sec. 6.2 Applicability.
(a) This part applies to any program or activity funded in whole or
in part with funds under title I of the Housing and Community
Development Act of 1974, including Community Development Block Grants--
Entitlement, State and HUD-Administered Small Cities, and Section 108
Loan Guarantees; Urban Development Action Grants; Economic Development
Initiative Grants; and Special Purpose Grants.
(b) The provisions of this part and sections 104(b)(2) and 109 of
Title I that relate to discrimination on the basis of race shall not
apply to the provision of Federal financial assistance by grantees under
this title to the Hawaiian Homelands (42 U.S.C. 5309).
(c) The provisions of this part and sections 104(b)(2) and 109 of
Title I that relate to discrimination on the basis of race and national
origin shall not apply to the provision of Federal financial assistance
to grant recipients under the Native American Housing Assistance and
Self-Determination Act (25 U.S.C. 4101). See also, 24 CFR 1003.601(a).
Sec. 6.3 Definitions.
The terms Department, HUD, and Secretary are defined in 24 CFR part
5. Other terms used in this part 6 are defined as follows:
Act means the Housing and Community Development Act of 1974, as
amended (42 U.S.C. 5301-5320).
Assistant Secretary means the Assistant Secretary for Fair Housing
and Equal Opportunity.
Award Official means the HUD official who has been delegated the
Secretary's authority to implement a Title I funded program and to make
grants under that program.
Complete complaint means a written statement that contains the
complainant's name and address, identifies the Recipient against which
the complaint is made, and describes the Recipient's alleged
discriminatory action in sufficient detail to inform HUD of the nature
and date of the alleged violation of section 109. It shall be signed by
the complainant or by someone authorized to do so on his or her behalf.
Complaints filed on behalf of classes or third parties shall describe or
identify (by name, if possible) the alleged victims of discrimination.
Federal financial assistance means: (1) Any assistance made
available under title I of the Housing and Community Development Act of
1974, as amended, and includes income generated from such assistance,
and any grant, loan, contract, or any other arrangement, in the form of:
(i) Funds;
(ii) Services of Federal personnel; or
(iii) Real or personal property or any interest in or use of such
property, including:
(A) Transfers or leases of the property for less than fair market
value or for reduced consideration; and
(B) Proceeds from a subsequent transfer or lease of the property if
the Federal share of its fair market value is not returned to the
Federal Government.
(2) Any assistance in the form of proceeds from loans guaranteed
under section 108 of the Act, but does not include assistance made
available through direct Federal procurement contracts or any other
contract of insurance or guaranty.
Program or activity (funded in whole or in part) means all of the
operations of--
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or local government; or
(ii) The entity of a State or local government that distributes
Federal financial assistance, and each department or agency (and each
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other post-secondary institution,
or a public system of higher education; or
[[Page 134]]
(ii) A local educational agency (as defined in section 198(a)(10) of
the Elementary and Secondary Education Act of 1965), system of
vocational education or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to the corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity that is described in paragraphs (1), (2), or
(3) of this definition, any part of which is extended Federal financial
assistance.
Recipient means any State, political subdivision of any State, or
instrumentality of any State or political subdivision; any public or
private agency, institution, organization, or other entity; or any
individual, in any State, to whom Federal financial assistance is
extended, directly or through another Recipient, for any program or
activity, or who otherwise participates in carrying out such program or
activity, including any successor, assign, or transferee thereof.
Recipient does not include any ultimate beneficiary under any program or
activity.
Responsible Official means the Assistant Secretary for Fair Housing
and Equal Opportunity or his or her designee.
Section 109 means section 109 of the Housing and Community
Development Act of 1974, as amended.
Title I means title I of the Housing and Community Development Act
of 1974 (42 U.S.C. 5301-5321).
Sec. 6.4 Discrimination prohibited.
(a) Section 109 requires that no person in the United States shall
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity funded in
whole or in part with Federal financial assistance, on the grounds of
race, color, national origin, religion, or sex.
(1) A Recipient under any program or activity to which this part
applies may not, directly or through contractual, licensing, or other
arrangements, take any of the following actions on the grounds of race,
color, national origin, religion, or sex:
(i) Deny any individual any facilities, services, financial aid, or
other benefits provided under the program or activity;
(ii) Provide any facilities, services, financial aid, or other
benefits that are different, or are provided in a different form, from
that provided to others under the program or activity;
(iii) Subject an individual to segregated or separate treatment in
any facility, or in any matter of process related to the receipt of any
service or benefit under the program or activity;
(iv) Restrict an individual's access to, or enjoyment of, any
advantage or privilege enjoyed by others in connection with facilities,
services, financial aid or other benefits under the program or activity;
(v) Treat an individual differently from others in determining
whether the individual satisfies any admission, enrollment, eligibility,
membership, or other requirements or conditions that the individual must
meet in order to be provided any facilities, services, or other benefit
provided under the program or activity;
(vi) Deny an individual an opportunity to participate in a program
or activity as an employee;
(vii) Aid or otherwise perpetuate discrimination against an
individual by providing Federal financial assistance to an agency,
organization, or person that discriminates in providing any housing,
aid, benefit, or service;
(viii) Otherwise limit an individual in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by other individuals
receiving the housing, aid, benefit, or service;
(ix) Use criteria or methods of administration that have the effect
of subjecting persons to discrimination or have the effect of defeating
or substantially impairing accomplishment of the objectives of the
program or activity
[[Page 135]]
with respect to persons of a particular race, color, national origin,
religion, or sex; or
(x) Deny a person the opportunity to participate as a member of
planning or advisory boards.
(2) In determining the site or location of housing, accommodations,
or facilities, a Recipient may not make selections that have the effect
of excluding persons from, denying them the benefits of, or subjecting
them to discrimination on the ground of race, color, national origin,
religion, or sex. The Recipient may not make selections that have the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of section 109 and of this part 6.
(3)(i) In administering a program or activity in which the Recipient
has discriminated on the grounds of race, color, national origin,
religion or sex, the Recipient must take any necessary steps to overcome
the effects of prior discrimination.
(ii) In the absence of discrimination, a Recipient, in administering
a program or activity, may take any steps necessary to overcome the
effects of conditions that resulted in limiting participation by persons
of a particular race, color, national origin, religion, or sex.
(iii) After a finding of noncompliance, or after a Recipient has
reasonable cause to believe that discrimination has occurred, a
Recipient shall not be prohibited by this section from taking any action
eligible under subpart C of 24 CFR part 570 to ameliorate an imbalance
in benefits, services or facilities provided to any geographic area or
specific group of persons within its jurisdiction, where the purpose of
such action is to remedy discriminatory practices or usage.
(iv)(A) Notwithstanding anything to the contrary in this part,
nothing contained in this section shall be construed to prohibit any
Recipient from maintaining or constructing separate living facilities or
restroom facilities for the different sexes in order to protect personal
privacy or modesty concerns. Furthermore, selectivity on the basis of
sex is not prohibited when institutional or custodial services can, in
the interest of personal privacy or modesty, only be performed by a
member of the same sex as those receiving the services.
(B) Section 109 of the Act does not directly prohibit discrimination
on the basis of age or disability, but directs that the prohibitions
against discrimination on the basis of age under the Age Discrimination
Act and the prohibitions against discrimination on the basis of
disability under Section 504 apply to Title I programs and activities.
Accordingly, for programs or activities receiving Federal financial
assistance, the regulations in this part 6 apply to discrimination on
the bases of race, color, national origin, religion, or sex; the
regulations at 24 CFR part 8 apply to discrimination on the basis of
disability; and the regulations at 24 CFR part 146 apply to
discrimination on the basis of age.
(b) [Reserved]
Sec. 6.5 Discrimination prohibited--employment.
(a) General. A Recipient may not, under any program or activity
funded in whole or in part with Federal financial assistance, directly
or through contractual agents or other arrangements including contracts
and consultants, subject a person to discrimination in the terms and
conditions of employment. Terms and conditions of employment include
advertising, interviewing, selection, promotion, demotion, transfer,
recruitment and advertising, layoff or termination, pay or other
compensation, including benefits, and selection for training.
(b) Determination of compliance status. The Assistant Secretary will
follow the procedures set forth in this part and 29 CFR part 1691 and
look to the substantive guidelines and policy of the Equal Employment
Opportunity Commission when reviewing employment practices under Section
109.
Sec. 6.6 Records to be maintained.
(a) General. Recipients shall maintain records and data as required
by 24 CFR 91.105, 91.115, 570.490, and 570.506.
(b) Employment. Recipients shall maintain records and data as
required by the Equal Employment Opportunity Commission at 29 CFR part
1600.
[[Page 136]]
(c) Recipients shall make available such records and any supporting
documentation upon request of the Responsible Official.
(Approved by the Office of Management and Budget under control numbers
2506-0117 and 2506-0077)
Subpart B_Enforcement
Sec. 6.10 Compliance information.
(a) Cooperation and assistance. The Responsible Official and the
Award Official will provide assistance and guidance to Recipients to
help them comply voluntarily with this part.
(b) Access to data and other sources of information. Each Recipient
shall permit access by authorized representatives of HUD to its
facilities, books, records, accounts, minutes and audio tapes of
meetings, personnel, computer disks and tapes, and other sources of
information as may be pertinent to a determination of whether the
Recipient is complying with this part. Where information required of a
Recipient is in the exclusive possession of any other agency,
institution, or person, and that agency, institution, or person fails or
refuses to furnish this information, the Recipient shall so certify in
any requested report and shall set forth what efforts it has made to
obtain the information. Failure or refusal to furnish pertinent
information (whether maintained by the Recipient or some other agency,
institution, or person) without a credible reason for the failure or
refusal will be considered to be noncompliance under this part.
(c) Compliance data. Each Recipient shall keep records and submit to
the Responsible Official, timely, complete, and accurate data at such
times and in such form as the Responsible Official may determine to be
necessary to ascertain whether the Recipient has complied or is
complying with this part.
(d) Notification to employees, beneficiaries, and participants. Each
Recipient shall make available to employees, participants,
beneficiaries, and other interested persons information regarding the
provisions of this part and its applicability to the program or activity
under which the Recipient receives Federal financial assistance and make
such information available to them in such manner as the Responsible
Official finds necessary to apprise such persons of the protections
against discrimination assured them by Section 109 and this part.
Sec. 6.11 Conduct of investigations.
(a) Filing a complaint--(1) Who may file. Any person who believes
that he or she has been subjected to discrimination prohibited by this
part may file, or may have an authorized representative file on his or
her behalf, a complaint with the Responsible Official. Any person who
believes that any specific class of persons has been subjected to
discrimination prohibited by this part and who is a member of that class
or who is the authorized representative of a member of that class may
file a complaint with the Responsible Official.
(2) Confidentiality. Generally, the Responsible Official shall hold
in confidence the identity of any person submitting a complaint, unless
the person submits written authorization otherwise. However, an
exception to maintaining confidentiality of the identity of the person
may be required to carry out the purposes of this part, including the
conduct of any investigation, hearing, or proceeding under this part.
(3) When to file. Complaints shall be filed within 180 days of the
alleged act of discrimination, unless the Responsible Official waives
this time limit for good cause. For purposes of determining when a
complaint is filed under this part, a complaint mailed to the
Responsible Official via the U.S. Postal Service will be deemed filed on
the date it is postmarked. A complaint delivered to the Responsible
Official in any other manner will be deemed filed on the date it is
received by the Responsible Official.
(4) Where to file complaints. Complaints must be in writing, signed,
addressed to the Responsible Official, and filed with (mailed to or
otherwise delivered to) the Office of Fair Housing and Equal Opportunity
at any HUD Office.
(5) Content of complaints. Each complaint should contain the
complainant's name, address, and phone number; a description or name, if
available,
[[Page 137]]
of the Recipient alleged to have violated this part; an address where
the violation occurred; and a description of the Recipient's alleged
discriminatory action in sufficient detail to inform the Responsible
Official of the nature and date of the alleged violation of this part.
(6) Amendments to complaints. Amendments to complaints, such as
clarification and amplification of allegations in a complaint or the
addition of other Recipients, may be made by the complainant or the
complainant's authorized representative at any time while the complaint
is being considered, and any amendment shall be deemed to be made as of
the original filing date.
(7) Notification. To the extent practicable, the Responsible
Official will notify the complainant and the Recipient of the
Responsible Official's receipt of a complaint within 10 calendar days of
receipt of a complete complaint. If the Responsible Official receives a
complaint that is not complete, the Responsible Official will notify the
complainant and specify the additional information that is needed to
make the complaint complete. If the complainant fails to complete the
complaint, the Responsible Official will close the complaint without
prejudice and notify the complainant. When a complete complaint has been
received, the Responsible Official, or his or her designee, will assess
the complaint for acceptance, rejection, or referral to an appropriate
Federal agency within 20 calendar days.
(8) Resolution of complaints. After the acceptance of a complete
complaint, the Responsible Official will investigate the complaint,
attempt informal resolution, and, if resolution is not achieved, the
Responsible Official will notify the Recipient and complainant, to the
extent practicable within 180 days of the receipt of the complete
complaint, of the results of the investigation in a letter of findings
sent by certified mail, return receipt requested, containing the
following:
(i) Findings of fact and a finding of compliance or noncompliance;
(ii) A description of an appropriate remedy for each violation
believed to exist; and
(iii) A notice of the right of the Recipient and the complainant to
request a review of the letter of findings by the Responsible Official.
A copy of the final investigative report will be made available upon
request.
(b) Compliance reviews--(1) Periodic compliance reviews. The
Responsible Official may periodically review the practices of Recipients
to determine whether they are complying with this part and may conduct
on-site reviews. The Responsible Official will initiate an on-site
review by sending to the Recipient a letter advising the Recipient of
the practices to be reviewed; the programs affected by the review; and
the opportunity, at any time before a final determination, to submit
information that explains, validates, or otherwise addresses the
practices under review. In addition, the Award Official will include, in
normal program compliance reviews and monitoring procedures, appropriate
actions to review and monitor compliance with general or specific
program requirements designed to implement the requirements of this
part.
(2) Time period of the review. (i) For the Entitlement program,
compliance reviews will cover the three years before the date of the
review.
(ii) For the Urban Development Action Grant (UDAG) program, the
compliance review is applicable only to UDAG loan repayments or other
payments or revenues classified as program income. UDAG repayments or
other payments or revenues classified as miscellaneous revenue are not
subject to compliance review under this part. (See 24 CFR 570.500(a).)
The compliance review will cover the time period that program income is
being repaid.
(iii) For the State and HUD-Administered Small Cities programs, the
compliance review will cover the four years before the date of the
review.
(iv) For all other programs, the time period covered by the review
will be four years before the date of the review.
(v) On a case-by-case basis, at the discretion of the Responsible
Official, the above time frames for review can be expanded where facts
or allegations warrant further investigation.
[[Page 138]]
(3) Early compliance resolution. On the last day of the on-site
visit, after the compliance review, the Recipient will be given an
opportunity to supplement the record. Additionally, a prefinding
conference may be held and a summary of the proposed findings may be
presented to the Recipient. In those instances where the issue(s) cannot
be resolved at a prefinding conference or with the supplemental
information, a meeting will be scheduled to attempt a voluntary
settlement.
(4) Notification of findings. (i) The Assistant Secretary will
notify the Recipient of Federal financial assistance of the results of
the compliance review in a letter of findings sent by certified mail,
return receipt requested.
(ii) Letter of findings. The letter of findings will include the
findings of fact and the conclusions of law; a description of a remedy
for each violation found; and a notice that a copy of HUD's final report
concerning its compliance review will be made available, upon request,
to the Recipient.
(c) Right to a review of the letter of findings. (1) Within 30 days
of receipt of the letter of findings, any party may request that a
review be made of the letter of findings, by mailing or delivering to
the Responsible Official, Room 5100, Office of Fair Housing and Equal
Opportunity, HUD, Washington, DC 20410, a written statement of the
reasons why the letter of findings should be modified.
(2) The Responsible Official will send by certified mail, return
receipt requested, a copy of the request for review to all parties.
Parties other than the party requesting review and HUD shall have 20
days from receipt to respond to the request for review.
(3) The Responsible Official will either sustain or modify the
letter of findings or require that further investigation be conducted,
within 60 days of the request for review. The Responsible Official's
decision shall constitute the formal determination of compliance or
noncompliance.
(4) If no party requests that the letter of findings be reviewed,
the Responsible Official, within 14 calendar days of the expiration of
the time period in paragraph (a)(9)(i) of this section, will send a
formal written determination of compliance or noncompliance to all
parties.
(d) Voluntary compliance time limits. The Recipient will have 10
calendar days from receipt of the letter of findings of noncompliance,
or such other reasonable time as specified in the letter, within which
to agree, in writing, to come into voluntary compliance or to contact
the Responsible Official for settlement discussions. If the Recipient
fails to meet this deadline, HUD will proceed in accordance with
Sec. Sec. 6.12 and 6.13.
(e) Informal resolution/voluntary compliance--(1) General. It is the
policy of HUD to encourage the informal resolution of matters. A
complaint or a compliance review may be resolved by informal means at
any time. If a letter of findings is issued, and the letter makes a
finding of noncompliance, the Responsible Official will attempt to
resolve the matter through a voluntary compliance agreement.
(2) Objectives of informal resolution/voluntary compliance. In
attempting informal resolution, the Responsible Official will attempt to
achieve a just resolution of the matter and to obtain assurances, where
appropriate, that the Recipient will satisfactorily remedy any
violations of the rights of any complainant, and will take such action
as will assure the elimination of any violation of this part or the
prevention of the occurrence of such violation in the future. If a
finding of noncompliance has been made, the terms of such an informal
resolution shall be reduced to a written voluntary compliance agreement,
signed by the Recipient and the Responsible Official, and be made part
of the file. Such voluntary compliance agreements shall seek to protect
the interests of the complainant (if any), other persons similarly
situated, and the public.
(3) Right to file a private civil action. At any time in the
process, the complainant has the right to file a private civil action.
If the complainant does so, the Responsible Official has the discretion
to administratively close the investigation or continue the
investigation, if he or she decides that it is in the best interests of
the Department to do so. If the Responsible Official makes a finding of
noncompliance and
[[Page 139]]
an agreement to voluntarily comply is not obtained from the Recipient,
the procedures at Sec. Sec. 6.12 and 6.13 for effecting compliance
shall be followed.
(f) Intimidatory or retaliatory acts prohibited. No Recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any person for the purpose of interfering with any right or privilege
secured by this part, or because he or she has made a complaint,
testified, assisted, or participated in any manner in an investigation,
compliance review, proceeding, or hearing under this part.
Sec. 6.12 Procedure for effecting compliance.
(a) Whenever the Assistant Secretary determines that a Recipient of
Federal financial assistance has failed to comply with Section 109(a) or
this part and voluntary compliance efforts have failed, the Secretary
will notify the Governor of the State or the Chief Executive Officer of
the unit of general local government of the findings of noncompliance
and will request that the Governor or the Chief Executive Officer secure
compliance. If within a reasonable period of time, not to exceed 60
days, the Governor or the Chief Executive Officer fails or refuses to
secure compliance, the Secretary will:
(1) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted;
(2) Exercise the powers and functions provided by Title VI;
(3) Terminate or reduce payments under Title I, or limit the
availability of payments under Title I to programs or activities not
affected by the failure to comply; or
(4) Take such other actions as may be provided by law, including,
but not limited to, the initiation of proceedings under 2 CFR part 2424
or any applicable proceeding under State or local law.
(b) Termination, reduction, or limitation of the availability of
Title I payments. No order terminating, reducing, or limiting the
availability of Title I payments under this part shall become effective
until:
(1) The Secretary has notified the Governor of the State or the
Chief Executive Officer of the unit of general local government of the
Recipient's failure to comply in accordance with paragraph (a) of this
section and of the termination, reduction or limitation of the
availability of Title I payments to be taken;
(2) The Secretary has determined that compliance cannot be secured
by voluntary means;
(3) The Recipient has been extended an opportunity for a hearing in
accordance with Sec. 6.13(a); and
(4) A final agency notice or decision has been rendered in
accordance with paragraph (c) of this section or 24 CFR part 180.
(c) If a Recipient does not respond to the notice of opportunity for
a hearing or does not elect to proceed with a hearing within 20 days of
the issuance of the Secretary's actions listed in paragraphs (b)(1), (2)
and (3) of this section, then the Secretary's approval of the
termination, reduction or limitation of the availability of Title I
payments is considered a final agency notice and the Recipient may seek
judicial review in accordance with section 111(c) of the Act.
[64 FR 3797, Jan. 25, 1999, as amended at 72 FR 73491, Dec. 27, 2007]
Sec. 6.13 Hearings and appeals.
(a) When a Recipient requests an opportunity for a hearing, in
accordance with Sec. 6.12(b)(3), the General Counsel will follow the
notification procedures set forth in 24 CFR 180.415. The hearing, and
any petition for review, will be conducted in accordance with the
procedures set forth in 24 CFR part 180.
(b) After a hearing is held and a final agency decision is rendered
under 24 CFR part 180, the Recipient may seek judicial review in
accordance with section 111(c) of the Act.
PART 8_NONDISCRIMINATION BASED ON HANDICAP IN FEDERALLY ASSISTED
PROGRAMS AND ACTIVITIES OF THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT--Table of Contents
Subpart A_General Provisions
Sec.
8.1 Purpose.
[[Page 140]]
8.2 Applicability.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 [Reserved]
8.6 Communications.
Subpart B_Employment
8.10 General prohibitions against employment discrimination.
8.11 Reasonable accommodation.
8.12 Employment criteria.
8.13 Preemployment inquiries.
Subpart C_Program Accessibility
8.20 General requirement concerning program accessibility.
8.21 Non-housing facilities.
8.22 New construction--housing facilities.
8.23 Alterations of existing housing facilities.
8.24 Existing housing programs.
8.25 Public housing and multi-family Indian housing.
8.26 Distribution of accessible dwelling units.
8.27 Occupancy of accessible dwelling units.
8.28 Housing certificate and housing voucher programs.
8.29 Homeownership programs (sections 235(i) and 235(j), Turnkey III and
Indian housing mutual self-help programs).
8.30 Rental rehabilitation program.
8.31 Historic properties.
8.32 Accessibility standards.
8.33 Housing adjustments.
Subpart D_Enforcement
8.50 Assurances required.
8.51 Self-evaluation.
8.52 Remedial and affirmative action.
8.53 Designation of responsible employee and adoption of grievance
procedures.
8.54 Notice.
8.55 Compliance information.
8.56 Conduct of investigations.
8.57 Procedure for effecting compliance.
8.58 Hearings.
Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d) and 5309.
Source: 53 FR 20233, June 2, 1988, unless otherwise noted.
Subpart A_General Provisions
Sec. 8.1 Purpose.
(a) The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C 794), to the end that
no otherwise qualified individual with handicaps in the United States
shall, solely by reason of his or her handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance from the Department of Housing and Urban Development. This
part also implements section 109 of the Housing and Community
Development Act of 1974, as amended (42 U.S.C. 5309). This part does not
effectuate section 504 as it applies to any program or activity
conducted by the Department. Compliance with this part does not assure
compliance with requirements for accessibility by physically-handicapped
persons imposed under the Architectural Barriers Act of 1968 (42 U.S.C.
4151-4157; 24 CFR part 40).
(b) The policies and standards for compliance established by this
part are established in contemplation of, and with a view to enforcement
through, the Department's administration of programs or activities
receiving Federal financial assistance and the administrative procedures
described in subparts D and E (including, without limitation, judicial
enforcement under Sec. 8.57(a)).
Sec. 8.2 Applicability.
This part applies to all applicants for, and recipients of, HUD
assistance in the operation of programs or activities receiving such
assistance. Such assistance includes, but is not limited to, that which
is listed in appendix A of this part.
Sec. 8.3 Definitions.
As used in this part:
Accessible, when used with respect to the design, construction, or
alteration of a facility or a portion of a facility other than an
individual dwelling unit, means that the facility or portion of the
facility when designed, constructed or altered, can be approached,
entered, and used by individuals with physical handicaps. The phrase
accessible to and usable by is synonomous with accessible.
Accessible, when used with respect to the design, construction, or
alteration of an individual dwelling unit, means
[[Page 141]]
that the unit is located on an accessible route and when designed,
constructed, altered or adapted can be approached, entered, and used by
individuals with physical handicaps. A unit that is on an accessible
route and is adaptable and otherwise in compliance with the standards
set forth in Sec. 8.32 is accessible within the meaning of this
paragraph. When a unit in an existing facility which is being made
accessible as a result of alterations is intended for use by a specific
qualified individual with handicaps (e.g., a current occupant of such
unit or of another unit under the control of the same recipient, or an
applicant on a waiting list), the unit will be deemed accessible if it
meets the requirements of applicable standards that address the
particular disability or impairment of such person.
Accessible route means a continuous unobstructed path connecting
accessible elements and spaces in a building or facility that complies
with the space and reach requirements of applicable standards prescribed
by Sec. 8.32. An accessible route that serves only accessible units
occupied by persons with hearing or vision impairments need not comply
with those requirements intended to effect accessibility for persons
with mobility impairments.
Adaptability means the ability of certain elements of a dwelling
unit, such as kitchen counters, sinks, and grab bars, to be added to,
raised, lowered, or otherwise altered, to accommodate the needs of
persons with or without handicaps, or to accommodate the needs of
persons with different types or degrees of disability. For example, in a
unit adaptable for a hearing-impaired person, the wiring for visible
emergency alarms may be installed but the alarms need not be installed
until such time as the unit is made ready for occupancy by a hearing-
impaired person.
Alteration means any change in a facility or its permanent fixtures
or equipment. It includes, but is not limited to, remodeling,
renovation, rehabilitation, reconstruction, changes or rearrangements in
structural parts and extraordinary repairs. It does not include normal
maintenance or repairs, reroofing, interior decoration, or changes to
mechanical systems.
Applicant for assistance means one who submits an application,
request, plan, or statement required to be approved by a Department
official or by a primary recipient as a condition of eligibility for
Federal financial assistance. An application means such a request, plan
or statement.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities receiving Federal financial assistance. For example,
auxiliary aids for persons with impaired vision may include readers,
Brailled materials, audio recordings, and other similar services and
devices. Auxiliary aids for persons with impaired hearing may include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Department or HUD means the Department of Housing and Urban
Development.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other real or
personal property or interest in the property.
Federal financial assistance means any assistance provided or
otherwise made available by the Department through any grant, loan,
contract or any other arrangement, in the form of:
(a) Funds;
(b) Services of Federal personnel; or
(c) Real or personal property or any interest in or use of such
property, including:
(1) Transfers or leases of the property for less than fair market
value or for reduced consideration; and
(2) Proceeds from a subsequent transfer or lease of the property if
the Federal share of its fair market value is not returned to the
Federal Government.
Federal financial assistance includes community development funds in
the form of proceeds from loans guaranteed under section 108 of the
Housing and Community Development Act of 1974,
[[Page 142]]
as amended, but does not include assistance made available through
direct Federal procurement contracts or payments made under these
contracts or any other contract of insurance or guaranty.
Handicap means any condition or characteristic that renders a person
an individual with handicaps.
Historic preservation programs or activities means programs or
activities receiving Federal financial assistance that have preservation
of historic properties as a primary purpose.
Historic properties means those properties that are listed or are
eligible for listing in the National Register of Historic Places, or
such properties designated as historic under a statute of the
appropriate State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities; has a record of such an impairment; or is regarded as having
such an impairment. For purposes of employment, this term does not
include: Any individual who is an alcoholic or drug abuser whose current
use of alcohol or drugs prevents the individual from performing the
duties of the job in question, or whose employment, by reason of current
alcohol or drug abuse, would constitute a direct threat to property or
the safety of others; or any individual who has a currently contagious
disease or infection and who, by reason of such disease or infection,
would constitute a direct threat to the health or safety of other
individuals or who, by reason of the currently contagious disease or
infection, is unable to perform the duties of the job. For purposes of
other programs and activities, the term does not include any individual
who is an alcoholic or drug abuser whose current use of alcohol or drugs
prevents the individual from participating in the program or activity in
question, or whose participation, by reason of such current alcohol or
drug abuse, would constitute a direct threat to property or the safety
of others. As used in this definition, the phrase:
(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, mental retardation, emotional illness, drug addiction
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 a
recipient 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
section but is treated by a recipient as having such an impairment.
Multifamily housing project means a project containing five or more
dwelling units.
Primary recipient means a person, group, organization, State or
local unit of government that is authorized or required to extend
Federal financial assistance to another recipient for the purpose of
carrying out a program or activity.
[[Page 143]]
Program or activity means all of the operations of:
(a)(1) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(2) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(b)(1) A college, university, or other post-secondary institution,
or a public system of higher education; or
(2) A local educational agency (as defined in section 198(a)(10) of
the Elementary and Secondary Education Act of 1965), system of
vocational education, or other school system;
(c)(1) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(i) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(ii) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(2) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(d) Any other entity which is established by two or more of the
entities described in paragraphs (a), (b), or (c) of this section;
any part of which is extended Federal financial assistance.
Project means the whole of one or more residential structures and
appurtenant structures, equipment, roads, walks, and parking lots which
are covered by a single contract for Federal financial assistance or
application for assistance, or are treated as a whole for processing
purposes, whether or not located on a common site.
Qualified individual with handicaps means:
(a) With respect to employment, an individual with handicaps who,
with reasonable accommodation, can perform the essential functions of
the job in question; and
(b) With respect to any non-employment program or activity which
requires a person to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
recipient can demonstrate would result in a fundamental alteration in
its nature; or
(c) With respect to any other non-employment program or activity, an
individual with handicaps who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that
program or activity. Essential eligibility requirements include stated
eligibility requirements such as income as well as other explicit or
implicit requirements inherent in the nature of the program or activity,
such as requirements that an occupant of multifamily housing be capable
of meeting the recipient's selection criteria and be capable of
complying with all obligations of occupancy with or without supportive
services provided by persons other than the recipient. For example, a
chronically mentally ill person whose particular condition poses a
significant risk of substantial interference with the safety or
enjoyment of others or with his or her own health or safety in the
absence of necessary supportive services may be qualified for occupancy
in a project where such supportive services are provided by the
recipient as part of the assisted program. The person may not be
qualified for a project lacking such services.
Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended for any program
or activity directly or through another recipient, including any
successor, assignee, or transferee of a recipient, but excluding the
ultimate beneficiary of the assistance. An entity or person receiving
housing assistance payments from a recipient on
[[Page 144]]
behalf of eligible families under a housing assistance payments program
or a voucher program is not a recipient or subrecipient merely by virtue
of receipt of such payments.
Replacement cost of the completed facility means the current cost of
construction and equipment for a newly constructed housing facility of
the size and type being altered. Construction and equipment costs do not
include the cost of land, demolition, site improvements, non-dwelling
facilities and administrative costs for project development activities.
Secretary means the Secretary of Housing and Urban Development.
Section 504 means section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 794, as it applies to programs or activities
receiving Federal financial assistance.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
[53 FR 20233, June 2, 1988; 54 FR 8188, Feb. 27, 1989]
Sec. 8.4 Discrimination prohibited.
(a) No qualified individual with handicaps shall, solely on the
basis of handicap, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity that receives Federal financial assistance from the
Department.
(b)(1) A recipient, in providing any housing, aid, benefit, or
service in a program or activity that receives Federal financial
assistance from the Department may not, directly or through contractual,
licensing, or other arrangements, solely on the basis of handicap:
(i) Deny a qualified individual with handicaps the opportunity to
participate in, or benefit from, the housing, aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in, or benefit from, the housing, aid, benefit, or service
that is not equal to that afforded to others;
(iii) Provide a qualified individual with handicaps with any
housing, aid, benefit, or service that is not as effective in affording
the individual an equal opportunity to obtain the same result, to gain
the same benefit, or to reach the same level of achievement as that
provided to others;
(iv) Provide different or separate housing, aid, benefits, or
services to individuals with handicaps or to any class of individuals
with handicaps from that provided to others unless such action is
necessary to provide qualified individuals with handicaps with housing,
aid, benefits, or services that are as effective as those provided to
others.
(v) Aid or perpetuate discrimination against a qualified individual
with handicaps by providing significant assistance to an agency,
organization, or person that discriminates on the basis of handicap in
providing any housing, aid, benefit, or service to beneficiaries in the
recipient's federally assisted program or activity;
(vi) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vii) Deny a dwelling to an otherwise qualified buyer or renter
because of a handicap of that buyer or renter or a person residing in or
intending and eligible to reside in that dwelling after it is sold,
rented or made available; or
(viii) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
other qualified individuals receiving the housing, aid, benefit, or
service.
(2) For purposes of this part, housing, aids, benefits, and
services, to be equally effective, are not required to produce the
identical result or level of achievement for individuals with handicaps
and non-handicapped persons, but must afford individuals with handicaps
equal opportunity to obtain the same result, to gain the same benefit,
or to reach the same level of achievement.
(3) A recipient may not deny a qualified individual with handicaps
the opportunity to participate in any federally assisted program or
activity that is not separate or different despite the existence of
permissibly separate or different programs or activities.
[[Page 145]]
(4) In any program or activity receiving Federal financial
assistance from the Department, a recipient may not, directly or through
contractual or other arrangements, utilize criteria or methods of
administration the purpose or effect of which would:
(i) Subject qualified individuals with handicaps to discrimination
solely on the basis of handicap;
(ii) Defeat or substantially impair the accomplishment of the
objectives of the recipient's federally assisted program or activity for
qualified individuals with a particular handicap involved in the program
or activity, unless the recipient can demonstrate that the criteria or
methods of administration are manifestly related to the accomplishment
of an objective of a program or activity; or
(iii) Perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same State.
(5) In determining the site or location of a federally assisted
facility, an applicant for assistance or a recipient may not make
selections the purpose or effect of which would:
(i) Exclude qualified individuals with handicaps from, deny them the
benefits of, or otherwise subject them to discrimination under, any
program or activity that receives Federal financial assistance from the
Department, or
(ii) Defeat or substantially impair the accomplishment of the
objectives of the program or activity with respect to qualified
individuals with handicaps.
(6) As used in this section, the housing, aid, benefit, or service
provided under a program or activity receiving Federal financial
assistance includes any housing, aid, benefit, or service provided in or
through a facility that has been constructed, altered, leased or rented,
or otherwise acquired, in whole or in part, with Federal financial
assistance.
(c)(1) Non-handicapped persons may be excluded from the benefits of
a program if the program is limited by Federal statute or executive
order to individuals with handicaps. A specific class of individuals
with handicaps may be excluded from a program if the program is limited
by Federal statute or Executive order to a different class of
individuals.
(2) Certain Department programs operate under statutory definitions
of handicapped person that are more restrictive than the definition of
individual with handicaps contained in Sec. 8.3 (see appendix B). Those
definitions are not superseded or otherwise affected by this regulation.
(d) Recipients shall administer programs and activities receiving
Federal financial assistance in the most integrated setting appropriate
to the needs of qualified individuals with handicaps.
(e) The obligation to comply with this part is not obviated or
alleviated by any State or local law or other requirement that, based on
handicap, imposes inconsistent or contradictory prohibitions or limits
upon the eligibility of qualified individuals with handicaps to receive
services or to practice any occupation or profession.
(f) The enumeration of specific forms of prohibited discrimination
in paragraphs (b) through (e) of this section does not limit the general
prohibition in paragraph (a) of this section.
[53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988]
Sec. 8.5 [Reserved]
Sec. 8.6 Communications.
(a) The recipient shall take appropriate steps to ensure effective
communication with applicants, beneficiaries, and members of the public.
(1) The recipient shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
receiving Federal financial assistance.
(i) In determining what auxiliary aids are necessary, the recipient
shall give primary consideration to the requests of the individual with
handicaps.
(ii) The recipient is not required to provide individually
prescribed devices, readers for personal use or study, or other devices
of a personal nature.
(2) Where a recipient communicates with applicants and beneficiaries
by telephone, telecommunication devices
[[Page 146]]
for deaf persons (TDD's) or equally effective communication systems
shall be used.
(b) The recipient shall adopt and implement procedures to ensure
that interested persons (including persons with impaired vision or
hearing) can obtain information concerning the existence and location of
accessible services, activities, and facilities.
(c) This section does not require a recipient to take any action
that the recipient can demonstrate would result in a fundamental
alteration in the nature of a program or activity or in undue financial
and administrative burdens. If an action would result in such an
alteration or burdens, the recipient shall take any other action that
would not result in such an alteration or such burdens but would
nevertheless ensure that, to the maximum extent possible, individuals
with handicaps receive the benefits and services of the program or
activity receiving HUD assistance.
Subpart B_Employment
Sec. 8.10 General prohibitions against employment discrimination.
(a) No qualified individual with handicaps shall, solely on the
basis of handicap, be subjected to discrimination in employment under
any program or activity that receives Federal financial assistance from
the Department.
(b) A recipient may not limit, segregate, or classify applicants or
employees in any way that adversely affects their opportunities or
status because of handicap.
(c) The prohibition against discrimination in employment applies to
the following activities:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, injury or
illness, and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence for training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(d) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified applicants with
handicaps or employees with handicaps to discrimination prohibited by
this subpart. The relationships referred to in this paragraph (d)
include relationships with employment and referral agencies, labor
unions, organizations providing or administering fringe benefits to
employees of the recipient, and organizations providing training and
apprenticeship programs.
Sec. 8.11 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant with
handicaps or employee with handicaps, unless the recipient can
demonstrate that the accommodation would impose an undue hardship on the
operation of its program.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees accessible to and usable by
individuals with handicaps and
(2) Job restructuring, job relocation, part-time or modified work
schedules, acquisitions or modification of equipment or devices, the
provision of readers or interpreters, and other similar actions.
(c) In determining, under paragraph (a) of this section, whether an
accommodation would impose an undue hardship on the operation of a
recipient's program, factors to be considered include:
[[Page 147]]
(1) The overall size of the recipient's program with respect to
number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
Sec. 8.12 Employment criteria.
(a) A recipient may not use any employment test or other selection
criterion that screens out or tends to screen out individuals with
handicaps or any class of individuals with handicaps unless:
(1) The recipient demonstrates that the test score or other
selection criterion, as used by the recipient, is job-related for the
position in question; and
(2) The appropriate HUD official demonstrates that alternative job-
related tests or criteria that tend to screen out fewer individuals with
handicaps are unavailable.
(b) A recipient shall select and administer tests concerning
employment to ensure that, when administered to an applicant or employee
who has a handicap that impairs sensory, manual, or speaking skills, the
test results accurately reflect the applicant's or employee's job
skills, aptitude, or whatever other factor the test purports to measure,
rather than the applicant's or employee's impaired sensory, manual, or
speaking skills (except where those skills are the factors that the test
purports to measure).
Sec. 8.13 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not make a preemployment inquiry or conduct a
preemployment medical examination of an applicant to determine whether
the applicant is an individual with handicaps or the nature or severity
of a handicap. A recipient may, however, make preemployment inquiry into
an applicant's ability to perform job-related functions.
(b) When a recipient is undertaking affirmative action efforts,
voluntary or otherwise, the recipient may invite applicants for
employment to indicate whether and to what extent they are handicapped,
if the following conditions are met:
(1) The recipient states clearly on any written questionnaire used
for this purpose, or makes clear orally if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations, or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential (as
provided in paragraph (d) of this section), that refusal to provide the
information will not subject the applicant or employee to any adverse
treatment, and that the information will be used only in accordance with
this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted before the employee's entrance on duty if all
entering employees in that category of job classification must take such
an examination regardless of handicap, and the results of such
examination are used only in accordance with the requirements of this
part.
(d) Information obtained under this section concerning the medical
condition or history of the applicant is to be collected and maintained
on separate forms that are accorded confidentiality as medical records,
except that:
(1) Supervisors and managers may be informed of restrictions on the
work or duties of individuals with handicaps and informed of necessary
accommodations;
(2) First aid and safety personnel may be informed if the condition
might require emergency treatment; and
(3) Government officials investigating compliance with section 504
shall be provided relevant information upon request.
[[Page 148]]
Subpart C_Program Accessibility
Sec. 8.20 General requirement concerning program accessibility.
Except as otherwise provided in Sec. Sec. 8.21(c)(1), 8.24(a),
8.25, and 8.31, no qualified individual with handicaps shall, because a
recipient's facilities are inaccessible to or unusable by individuals
with handicaps, be denied the benefits of, be excluded from
participation in, or otherwise be subjected to discrimination under any
program or activity that receives Federal financial assistance.
Sec. 8.21 Non-housing facilities.
(a) New construction. New non-housing facilities shall be designed
and constructed to be readily accessible to and usable by individuals
with handicaps.
(b) Alterations to facilities. Alterations to existing non-housing
facilities shall, to the maximum extent feasible, be made to be readily
accessible to and usable by individuals with handicaps. For purposes of
this paragraph, the phrase to the maximum extent feasible shall not be
interpreted as requiring that a recipient make a non-housing facility,
or element thereof, accessible if doing so would impose undue financial
and administrative burdens on the operation of the recipient's program
or activity.
(c) Existing non-housing facilities--(1) General. A recipient shall
operate each non-housing program or activity receiving Federal financial
assistance so that the program or activity, when viewed in its entirety,
is readily accessible to and usable by individuals with handicaps. This
paragraph does not--
(i) Necessarily require a recipient to make each of its existing
non-housing facilities accessible to and usable by individuals with
handicaps;
(ii) In the case of historic preservation programs or activities,
require the recipient to take any action that would result in a
substantial impairment of significant historic features of an historic
property; or
(iii) Require a recipient to take any action that it can demonstrate
would result in a fundamental alteration in the nature of its program or
activity or in undue financial and administrative burdens. If an action
would result in such an alteration or such burdens, the recipient shall
take any action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with handicaps
receive the benefits and services of the program or activity.
(2) Methods--(i) General. A recipient may comply with the
requirements of this section in its programs and activities receiving
Federal financial assistance through such means as location of programs
or services to accessible facilities or accessible portions of
facilities, assignment of aides to beneficiaries, home visits, the
addition or redesign of equipment (e.g., appliances or furnishings)
changes in management policies or procedures, acquisition or
construction of additional facilities, or alterations to existing
facilities on a selective basis, or any other methods that result in
making its program or activity accessible to individuals with handicaps.
A recipient is not required to make structural changes in existing
facilities where other methods are effective in achieving compliance
with this section. In choosing among available methods for meeting the
requirements of this section, the recipient shall give priority to those
methods that offer programs and activities to qualified individuals with
handicaps in the most integrated setting appropriate.
(ii) Historic preservation programs or activities. In meeting the
requirements of Sec. 8.21(c) in historic preservation programs or
activities, a recipient shall give priority to methods that provide
physical access to individuals with handicaps. In cases where a physical
alteration to an historic property is not required because of Sec.
8.21(c)(1)(ii) or (iii), alternative methods of achieving program
accessibility include using audio-visual materials and devices to depict
those portions of an historic property that cannot otherwise be made
accessible; assigning persons to guide individuals with handicaps into
or through portions of historic properties that cannot otherwise be made
accessible; or adopting other innovative methods.
(3) Time period for compliance. The recipient shall comply with the
obligations established under this section
[[Page 149]]
within sixty days of July 11, 1988, except that where structural changes
in facilities are undertaken, such changes shall be made within three
years of July 11, 1988, but in any event as expeditiously as possible.
(4) Transition plan. If structural changes to non-housing facilities
will be undertaken to achieve program accessibility, a recipient shall
develop, within six months of July 11, 1988, a transition plan setting
forth the steps necessary to complete such changes. The plan shall be
developed with the assistance of interested persons, including
individuals with handicaps or organizations representing individuals
with handicaps. A copy of the transition plan shall be made available
for public inspection. The plan shall, at a minimum--
(i) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(ii) Describe in details the methods that will be used to make the
facilities accessible;
(iii) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period;
(iv) Indicate the official responsible for implementation of the
plan; and
(v) Identify the persons or groups with whose assistance the plan
was prepared.
(Approved by the Office of Management and Budget under control number
2529-0034)
[53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988, as amended at 54
FR 37645, Sept. 12, 1989]
Sec. 8.22 New construction--housing facilities.
(a) New multifamily housing projects (including public housing and
Indian housing projects as required by Sec. 8.25) shall be designed and
constructed to be readily accessible to and usable by individuals with
handicaps.
(b) Subject to paragraph (c) of this section, a minimum of five
percent of the total dwelling units or at least one unit in a
multifamily housing project, whichever is greater, shall be made
accessible for persons with mobility impairments. A unit that is on an
accessible route and is adaptable and otherwise in compliance with the
standards set forth in Sec. 8.32 is accessible for purposes of this
section. An additional two percent of the units (but not less than one
unit) in such a project shall be accessible for persons with hearing or
vision impairments.
(c) HUD may prescribe a higher percentage or number than that
prescribed in paragraph (b) of this section for any area upon request
therefor by any affected recipient or by any State or local government
or agency thereof based upon demonstration to the reasonable
satisfaction of HUD of a need for a higher percentage or number, based
on census data or other available current data (including a currently
effective Housing Assistance Plan or Comprehensive Homeless Assistance
Plan), or in response to evidence of a need for a higher percentage or
number received in any other manner. In reviewing such request or
otherwise assessing the existence of such needs, HUD shall take into
account the expected needs of eligible persons with and without
handicaps.
[53 FR 20233, June 2, 1988, as amended at 56 FR 920, Jan. 9, 1991]
Sec. 8.23 Alterations of existing housing facilities.
(a) Substantial alteration. If alterations are undertaken to a
project (including a public housing project as required by Sec.
8.25(a)(2)) that has 15 or more units and the cost of the alterations is
75 percent or more of the replacement cost of the completed facility,
then the provisions of Sec. 8.22 shall apply.
(b) Other alterations. (1) Subject to paragraph (b)(2) of this
section, alterations to dwelling units in a multifamily housing project
(including public housing) shall, to the maximum extent feasible, be
made to be readily accessible to and usable by individuals with
handicaps. If alterations of single elements or spaces of a dwelling
unit, when considered together, amount to an alteration of a dwelling
unit, the entire dwelling unit shall be made accessible. Once five
percent of the dwelling units in a project are readily accessible
[[Page 150]]
to and usable by individuals with mobility impairments, then no
additional elements of dwelling units, or entire dwelling units, are
required to be accessible under this paragraph. Alterations to common
areas or parts of facilities that affect accessibility of existing
housing facilities shall, to the maximum extent feasible, be made to be
accessible to and usable by individuals with handicaps. For purposes of
this paragraph, the phrase to the maximum extent feasible shall not be
interpreted as requiring that a recipient (including a PHA) make a
dwelling unit, common area, facility or element thereof accessible if
doing so would impose undue financial and administrative burdens on the
operation of the multifamily housing project.
(2) HUD may prescribe a higher percentage or number than that
prescribed in paragraph (b)(1) of this section for any area upon request
therefor by any affected recipient or by any State or local government
or agency thereof based upon demonstration to the reasonable
satisfaction of HUD of a need for a higher percentage or number, based
on census data or other available current data (including a currently
effective Housing Assistance Plan or Comprehensive Homeless Assistance
Plan), or in response to evidence of a need for a higher percentage or
number received in any other manner. In reviewing such request or
otherwise assessing the existence of such needs, HUD shall take into
account the expected needs of eligible persons with and without
handicaps.
Sec. 8.24 Existing housing programs.
(a) General. A recipient shall operate each existing housing program
or activity receiving Federal financial assistance so that the program
or activity, when viewed in its entirety, is readily accessible to and
usable by individuals with handicaps. This paragraph does not--
(1) Necessarily require a recipient to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) Require a recipient to take any action that it can demonstrate
would result in a fundamental alteration in the nature of its program or
activity or in undue financial and administrative burdens. If an action
would result in such an alteration or such burdens, the recipient shall
take any action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with handicaps
receive the benefits and services of the program or activity.
(b) Methods. A recipient may comply with the requirements of this
section through such means as reassignment of services to accessible
buildings, assignment of aides to beneficiaries, provision of housing or
related services at alternate accessible sites, alteration of existing
facilities and construction of new facilities, or any other methods that
result in making its programs or activities readily accessible to and
usable by individuals with handicaps. A recipient is not required to
make structural changes in existing housing facilities where other
methods are effective in achieving compliance with this section or to
provide supportive services that are not part of the program. In
choosing among available methods for meeting the requirements of this
section, the recipient shall give priority to those methods that offer
programs and activities to qualified individuals with handicaps in the
most integrated setting appropriate.
(c) Time period for compliance. The recipient shall comply with the
obligations established under this section within sixty days of July 11,
1988 except that--
(1) In a public housing program where structural changes in
facilities are undertaken, such changes shall be made within the
timeframes established in Sec. 8.25(c).
(2) In other housing programs, where structural changes in
facilities are undertaken, such changes shall be made within three years
of July 11, 1988, but in any event as expeditiously as possible.
(d) Transition plan and time period for structural changes. Except
as provided in Sec. 8.25(c), in the event that structural changes to
facilities will be undertaken to achieve program accessibility, a
recipient shall develop, within six months of July 11, 1988, a
transition plan setting forth the steps necessary to complete such
changes. The plan
[[Page 151]]
shall be developed with the assistance of interested persons, including
individuals with handicaps or organizations representing individuals
with handicaps. A copy of the transition plan shall be made available
for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period;
(4) Indicate the official responsible for implementation of the
plan; and
(5) Identify the persons or groups with whose assistance the plan
was prepared.
(Approved by the Office of Management and Budget under control number
2529-0034)
[53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988, as amended at 54
FR 37645, Sept. 12, 1989]
Sec. 8.25 Public housing and multi-family Indian housing.
(a) Development and alteration of public housing and multi-family
Indian housing. (1) The requirements of Sec. 8.22 shall apply to all
newly constructed public housing and multi-family Indian housing.
(2) The requirements of Sec. 8.23 shall apply to public housing and
multi-family Indian housing developed through rehabilitation and to the
alteration of public housing and multi-family Indian housing.
(3) In developing public housing and multi-family Indian housing
through the purchase of existing properties PHAs and IHAs shall give
priority to facilities which are readily accessible to and usable by
individuals with handicaps.
(b) Existing public housing and multi-family Indian housing--
general. The requirements of Sec. 8.24(a) shall apply to public housing
and multi-family Indian housing programs.
(c) Existing public housing and multi-family Indian housing--needs
assessment and transition plan. As soon as possible, each PHA (for the
purpose of this paragraph, this includes an Indian Housing Authority)
shall assess, on a PHA-wide basis, the needs of current tenants and
applicants on its waiting list for accessible units and the extent to
which such needs have not been met or cannot reasonably be met within
four years through development, alterations otherwise contemplated, or
other programs administered by the PHA (e.g., Section 8 Moderate
Rehabilitation or Section 8 Existing Housing or Housing Vouchers). If
the PHA currently has no accessible units or if the PHA or HUD
determines that information regarding the availability of accessible
units has not been communicated sufficiently so that, as a result, the
number of eligible qualified individuals with handicaps on the waiting
list is not fairly representative of the number of such persons in the
area, the PHA's assessment shall include the needs of eligible qualified
individuals with handicaps in the area. If the PHA determines, on the
basis of such assessment, that there is no need for additional
accessible dwelling units or that the need is being or will be met
within four years through other means, such as new construction, Section
8 or alterations otherwise contemplated, no further action is required
by the PHA under this paragraph. If the PHA determines, on the basis of
its needs assessment, that alterations to make additional units
accessible must be made so that the needs of eligible qualified
individuals with handicaps may be accommodated proportionally to the
needs of non-handicapped individuals in the same categories, then the
PHA shall develop a transition plan to achieve program accessibility.
The PHA shall complete the needs assessment and transition plan, if one
is necessary, as expeditiously as possible, but in any event no later
than two years after July 11, 1988. The PHA shall complete structural
changes necessary to achieve program accessibility as soon as possible
but in any event no later than four years after July 11, 1988. The
Assistant Secretary for Fair Housing and Equal Opportunity and the
Assistant Secretary for Public and Indian
[[Page 152]]
Housing may extend the four year period for a period not to exceed two
years, on a case-by-case determination that compliance within that
period would impose undue financial and administrative burdens on the
operation of the recipient's public housing and multi-family Indian
housing program. The Secretary or the Undersecretary may further extend
this time period in extraordinary circumstances, for a period not to
exceed one year. The plan shall be developed with the assistance of
interested persons including individuals with handicaps or organizations
representing individuals with handicaps. A copy of the needs assessment
and transition plan shall be made available for public inspection. The
transition plan shall, at a minimum--
(1) Identify physical obstacles in the PHA's facilities (e.g.,
dwelling units and common areas) that limit the accessibility of its
programs or activities to individuals with handicaps;
(2) Describe in detail the methods that will be used to make the
PHA's facilities accessible. A PHA may, if necessary, provide in its
plan that it will seek HUD approval, under 24 CFR part 968, of a
comprehensive modernization program to meet the needs of eligible
individuals with handicaps;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time of the transition plan is
longer than one year, identify steps that will be taken during each year
of the transition period;
(4) Indicate the official responsible for implementation of the
plan; and
(5) Identify the persons or groups with whose assistance the plan
was prepared.
(Approved by the Office of Management and Budget under control number
2529-0034)
[53 FR 20233, June 2, 1988, as amended at 54 FR 37645, Sept. 12, 1989;
56 FR 920, Jan. 9, 1991]
Sec. 8.26 Distribution of accessible dwelling units.
Accessible dwelling units required by Sec. 8.22, 8.23, 8.24 or 8.25
shall, to the maximum extent feasible and subject to reasonable health
and safety requirements, be distributed throughout projects and sites
and shall be available in a sufficient range of sizes and amenities so
that a qualified individual with handicaps' choice of living
arrangements is, as a whole, comparable to that of other persons
eligible for housing assistance under the same program. This provision
shall not be construed to require provision of an elevator in any
multifamily housing project solely for the purpose of permitting
location of accessible units above or below the accessible grade level.