[Congressional Record Volume 141, Number 175 (Tuesday, November 7, 1995)]
[Senate]
[Page S16754]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself and Mr. Faircloth):
  S. 1397. A bill to provide for State control over fair housing 
matters, and for other purposes; to the Committee on Banking, Housing, 
and Urban Affairs.


   the kyl-faircloth state fair housing laws recognition act of 1995

  Mr. KYL. Mr. President, I rise to introduce the Kyl-Faircloth State 
Fair Housing Laws Recognition Act of 1995. I thank Senator Faircloth 
for his cosponsorship of this bill, and his leadership in States rights 
issues. I am pleased to introduce this amendment which will prohibit 
the Department of Housing and Urban Development [HUD] from enforcing a 
complaint of discrimination on the basis of a housing provider's 
occupancy standard, and thereby transferring from HUD to the States and 
localities the authority to set occupancy standards.
  Mr. President, an occupancy standard specifies the number of people 
who may live in a residential rental unit. In July of this year, HUD 
general counsel Nelson Diaz issued a memorandum which, in effect, 
supplants the traditional two-per-bedroom occupancy standard, and may 
force housing owners to accept six, seven, eight, or even nine people 
in a two-bedroom apartment. HUD should not be establishing national 
occupancy standards.
  HUD was created in 1965 with the best of intentions: To build and 
fund housing for the poor. But the agency's regulations have gone far 
beyond the scope of that intent. Housing is first and foremost a local 
issue. The Federal Government should play a limited role in it. State 
officials are closer to the situation and can tailor standards to meet 
the needs of their communities.
  HUD has accepted a two-per-bedroom standard as reasonable in 
enforcing fair housing discrimination laws under the Fair Housing Act. 
Most public housing units subscribe to that standard. That is, until 
Henry Cisneros became Secretary of HUD. Secretary Cisneros and his then 
Deputy, Roberta Achtenberg, disagreed with the traditional occupancy 
standard, arguing that it discriminates against larger families.
  The new HUD standard is without factual foundation. Mr. Diaz has used 
the Building Officials and Code Administrators [BOCA] Property 
Maintenance Code as a foundation for his occupancy standard. The BOCA 
code, however, is a health and safely code specifically drafted by 
engineers and architects to provide guidance to municipalities on the 
maximum number of individuals who may safety occupy any building. It 
was never intended to alter the minimum number of family members HUD 
could require owners to accept under fair housing law.
  The code was adopted without any consultation, public hearings, or 
analysis of its impact on the Nation's rental housing industries. That 
is wrong. Secretary Cisneros, through HUD's general counsel, has 
circumvented the Federal Government's rulemaking process by imposing 
this standard through an advisory without public hearings.
  Mr. President, the Manufactured Housing Institute, Arizona 
Association of Homes and Housing for the Aging, and the Arizona 
Multihousing Association endorse the bill. Arizona Gov. Fife Symington, 
speaker of the Arizona House of Representatives Mark Killian, and 
president of the Arizona Senate John Greene have sent me a letter in 
support of this bill. I ask unanimous consent that their letter be 
printed in the Record.
  States and localities should establish occupancy standards, not a 
Federal bureaucracy. Several States have an occupancy standard 
including my own home State, Arizona. And it has worked well. It is 
time we begin returning a certain amount of authority back to the 
States. Public housing laws are a good place to start. That is why I 
introduce this bill which blocks HUD's attempt to set a national 
occupancy standard, and transfers that authority to the States and 
cities. I urge my colleagues to cosponsor this bill. I ask unanimous 
consent that the full text of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1379

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. RECOGNITION OF STATE FAIR HOUSING LAWS.

       (a) Amendment of Fair Housing Act.--Section 807(b)(1) of 
     the Fair Housing Act (42 U.S.C. 3607(b)(1)) is amended--
       (1) by striking ``(b)(1) Nothing'' and inserting 
     ``(b)(1)(A) Nothing''; and
       (2) by adding at the end the following:
         ``(B) A State law regarding the number of occupants 
     permitted to occupy a dwelling--
       ``(i) shall be presumptively reasonable for the purposes of 
     determining familial status discrimination in residential 
     rental housing; and
       ``(ii) shall not form the basis of any action by the 
     Secretary to withdraw equivalency status from any State, 
     locality, or agency.
       ``(C) The Secretary shall not establish a de jure or de 
     facto national occupancy code.
       ``(D) Each State, locality, or agency with HUD equivalency 
     status shall have complete and final control over fair 
     housing cases involving occupancy standards within its 
     jurisdiction without the intervention of the Secretary.''.
       (b) Enforcement.--Notwithstanding any other provision of 
     this Act, no funds shall be available to the Department of 
     Housing and Urban Development under this Act to carry out the 
     Fair Housing Act unless the Department complies with the 
     amendment made by subsection (a).

     SEC. 2. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall apply to 
     cases filed on or after December 31, 1995.
                                                                    ____



                                    Arizona State Legislature,

                                    Phoenix, AZ, October 16, 1995.
     Hon. John Kyl,
     U.S. Senate,
     Russell Building,
     Washington, DC.
       Dear Senator Kyl: Thank you for your prompt and decisive 
     action regarding the issue of federal intervention in the 
     area of occupancy standards as outlined in our joint letter 
     of August 15, 1995. As you know, the issue has been a very 
     divisive one in Arizona, and has now spread to other states 
     nationwide.
       We believe that your proposed legislation will resolve the 
     issue by reaffirming the right of each state to set standards 
     that it deems most appropriate. We especially applaud your 
     requirement that HUD shall not establish a national occupancy 
     standard, but defer to authorized state agencies in the 
     administration of cases involving occupancy standards.
       We fully support your legislation and by this letter have 
     notified other Members of the Arizona delegation of our 
     support. We appreciate your leadership on this issue and 
     compliment your excellent staff for their work on the bill. 
     If we may assist you in any way to promote the passage of 
     this legislation, please let us know.
           Sincerely,
     Fife Symington,
       Governor, State of Arizona.
     John Greene,
       President, Arizona Senate.
     Mark W. Killian,
       Speaker, Arizona House of Representatives.
                                 ______