[Federal Register Volume 60, Number 160 (Friday, August 18, 1995)]
[Rules and Regulations]
[Pages 43322-43333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20222]




[[Page 43321]]

_______________________________________________________________________

Part VII





Department of Housing and Urban Development





_______________________________________________________________________



24 CFR Part 100



Housing for Older Persons; Defining Significant Facilities and 
Services; Amendments; Final Rule

  Federal Register / Vol. 60, No. 160 / Friday, August 18, 1995 / Rules 
and Regulations   

[[Page 43322]]


DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity

24 CFR Part 100

[Docket No. FR-3502-F-08]
RIN 2529-AA66


Housing for Older Persons; Defining Significant Facilities and 
Services; Amendments

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity, HUD.

ACTION: Final rule.

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SUMMARY: This final rule implements section 919 of the Housing and 
Community Development Act of 1992. Section 919 requires the Secretary 
of HUD to issue ``rules defining what are `significant facilities and 
services especially designed to meet the physical or social needs of 
older persons' required under section 807(b)(2) of the Fair Housing Act 
to meet the definition of the term `housing for older persons' in such 
section.'' This final rule amends HUD's regulations governing ``housing 
for older persons'', to provide the definitions required by section 
919.

EFFECTIVE DATE: September 18, 1995.

FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Office of 
Investigations, Office of Fair Housing and Equal Opportunity, Room 
5204, U.S. Department of Housing and Urban Development, 451 Seventh 
Street, SW, Washington, DC 20410-0500, telephone (202) 708-0836. 
Hearing or speech-impaired individuals may call HUD's TDD number (202) 
708-0113, or 1-800-877-8399 (Federal Information Relay Service TDD). 
(Other than the ``800'' number, these are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:

I. Background

A. The March 14, 1995 Proposed Rule

    On March 14, 1995 (60 FR 13840), HUD published a rule which 
proposed to implement section 919 of the Housing and Community 
Development Act of 1992 (Pub. L. 102-550, approved October 28, 1992).
    The Fair Housing Act (Title VIII of the Civil Right Act of 1968, as 
amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601-19) 
(the Act) exempts ``housing for older persons'' from the prohibitions 
against discrimination because of familial status. Specifically, 
section 807(b)(2)(C) of the Act exempts housing intended and operated 
for occupancy by at least one person 55 years of age or older per unit 
that satisfies certain criteria. The Act requires that the housing 
facility provide ``significant facilities and services especially 
designed to meet the physical or social needs of older persons.'' HUD 
has implemented the ``housing for older persons'' exemption at 24 CFR 
part 100, subpart E.
    Section 919 of the Housing and Community Development Act of 1992, 
requires the Secretary of HUD to issue rules further defining what are 
``significant facilities and services especially designed to meet the 
physical or social needs of older persons'' required under section 
807(b)(2) of the Fair Housing Act to meet the definition of the term 
``housing for older persons.'' The March 14, 1995 rule proposed to 
amend subpart E to provide the definitions required by section 919. 
Specifically, the rule proposed to create a new section establishing 
the criteria for determining whether a facility or service is 
``significant'' or ``specifically designed to meet the physical or 
social needs of older persons.'' 1 This proposed section set forth 
a ``menu'' of facilities and services which a housing provider could 
choose to furnish. Another proposed section permitted communities 
selecting a requisite number and type of facilities and services from 
the ``menu'' to ``self-certify'' their compliance with the Act. The 
preamble to the March 14, 1995 proposed rule described in detail the 
amendments to 24 CFR part 100, subpart E.

    \1\ The language of section 919 contains the word 
``especially'': ``* * * rules defining what are `significant 
facilities and services especially designed to meet the physical or 
social needs of older persons' required under section 807(b)(2) of 
the Fair Housing Act to meet the definition of the term `housing for 
older person' in such section.'' (emphasis added) This final rule 
uses the word ``specifically'' rather than the word ``especially'' 
to comply with congressional intent and reflect the actual language 
of section 807(b)(2) of the Fair Housing Act.
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    The March 14, 1995 proposed rule was HUD's second attempt at 
implementing the requirements of section 919. An earlier rule, 
published on July 7, 1994 (59 FR 34902), also proposed to define 
``significant facilities and services.'' The July 7, 1994 proposed rule 
was of great interest to many seniors. By close of business on November 
30, 1994, 15,219 comments had been received. Based on the written 
comments received on the proposed rule, and the comments received at 
five public meetings held across the country, HUD decided to make 
significant changes to the July 7, 1994 proposed rule.
    On December 12, 1994 (59 FR 64104), HUD announced it would not 
proceed to final rulemaking on the July 7, 1994 proposed rule. Instead, 
HUD issued the March 14, 1995 proposed rule, which addressed the issues 
raised by the commenters and solicited additional public comment.

B. Discussion of Public Comments on the March 14, 1995 Proposed Rule

    The March 14, 1995 proposed rule was of significant interest to the 
public. By the expiration of the public comment period on May 15, 1995, 
1,080 comments had been received. The majority of commenters expressed 
support for the proposed rule and urged its adoption without further 
change. Most of these commenters thanked HUD for taking time to listen 
to the concerns expressed by seniors over the July 7, 1995 proposed 
rule. An extremely popular form letter, which comprised approximately 
61% of the total comments received, read:

    I support the newly proposed rule on Significant Facilities and 
Services for Housing for Older Persons under the Fair Housing Act. I 
believe the needs of seniors in senior housing are fairly reflected 
and supported in the flexibility of the new amendments. The new 
regulations are simple, clear, and realistic. I appreciate HUD 
staff's willingness to travel across the country and listen 
compassionately to testimony. Thank you for responding positively to 
the valid concerns of seniors and community leaders expressed in the 
hearings.

    As a result of the positive public response, HUD has made very few 
changes to the March 14, 1995 proposed rule. The following section of 
the preamble presents a summary of the significant issues raised by the 
public commenters on the proposed rule, and HUD's responses to these 
comments.
Preamble's Comparative Analysis Language
    Comment. Several commenters were opposed to the language in the 
preamble to the proposed rule stating that in order to qualify as 55-
or-over housing, ``the evidence must show that the housing in question 
is clearly distinguished from the bulk of other housing (except for 
other older persons housing) in a particular area.'' (60 FR 13840, 
13841). These commenters felt the language would make the proposed 
self-certification mechanism meaningless. The commenters interpreted 
this preamble language to mean that the existence of similar facilities 
and services at family communities in the area would deny 55-or-over 
status to a community which otherwise meets the 

[[Page 43323]]
``menu'' requirements of proposed Sec. 100.306.
    HUD Response. HUD agrees that this preamble language may be 
interpreted to negate the effectiveness of self-certification. 
Accordingly, HUD wishes to emphasize that it is the existence, in the 
aggregate, of at least ten requisite facilities and services from the 
``menu'' set forth in Sec. 100.306 which establishes a community as 55-
or-over housing. This is true even if a particular facility or service 
is also locally available at other types of housing.
The Proposed Definition of ``Occupied By'' Was Unfair
    Comment. The definition of ``occupied by'' set forth in proposed 
Sec. 100.306(e) required that units be occupied by a person 55 years of 
age or over, not only at the time of the alleged violation, but ``at 
least 60 days in the preceding year.'' Several commenters believed that 
this proposed definition would impose unfair burdens on 55-or-over 
communities in meeting the Act's 80 percent occupancy requirement. The 
commenters pointed out that it is administratively difficult to 
determine when property occupants come and go.
    HUD Response. HUD concurs with these commenters. HUD has revised 
the definition of ``occupied by'' set forth in the March 14, 1995 
proposed rule by eliminating the 60-day requirement. This final rule 
defines ``occupied by'' to mean actual occupancy of a unit by one or 
more persons over 55 years of age or older.
Necessity of Age Verification Procedures
    Comment. Several commenters believed that the proposed rule 
contained contradictory statements regarding the requirement of age 
verification procedures. The preamble stated that HUD would ``not 
require the use of age verification procedures.'' (60 FR 13840, 13842). 
However, proposed Sec. 100.316, which discussed a provider's intent to 
provide housing for older persons, included age verification procedures 
in the non-exclusive list of factors HUD will utilize in determining 
the existence of such intent. One commenter went so far as to suggest 
that the final rule make age-verification procedures a requirement for 
establishing intent.
    HUD Response. HUD has decided not to impose yet another federal 
obligation on senior communities by requiring the use of age 
verification procedures. The Act does not require that age verification 
procedures be used. Proposed Sec. 100.316 merely stated that routine 
use of age verification procedures is one way which a community may 
indicate that it intends to be ``housing for older persons.''
    If a community decides to utilize age verification procedures, they 
must comply with court established requirements. Specifically, the 
procedures must be enforceable, objective, and consistently applied. 
Age-verification records must be accurately maintained by the housing 
provider. The age verification mechanism must provide for a review of 
current residents, as well as of potential new residents. Furthermore, 
the age verification procedures must require some form of independent 
proof to confirm the age of the residents. Driver's licenses or copies 
of birth certificates are two acceptable methods to confirm age.
    In sum, lease applications or other preliminary resident 
documentation should include a request for age verification data. 
Housing providers should make it clear to potential residents that the 
request is made to ensure conformity with the community's policy of 
maintaining the reliable records necessary for qualifying for the 
``housing for older persons'' exemption. Age verification data must be 
confirmed through objective reliable means that at least one person who 
will be occupying the property will be 55 years of age or older.
Mandatory Continuation of Terminated Volunteer Services
    Comment. Several senior commenters, while supporting the proposed 
rule's authorization of the use of off-site or volunteer services, 
expressed worry that housing providers might not take steps to assure 
the continued availability of these services. These seniors wish 
housing providers to be required to locate an alternate means of 
providing the volunteer services, if for some reason the current 
services are discontinued.
    HUD Response. The March 14, 1995 proposed rule, and this final 
rule, make the housing provider ultimately responsible for providing 
the significant facilities and services. If volunteer provided 
facilities and services are discontinued, the housing provider is 
responsible for ensuring that replacement facilities or services are 
provided, or the community will no longer qualify for the exemption. 
HUD does not agree with the commenters that it should require housing 
providers to continue specific volunteer services which have been 
terminated. The particular volunteer facilities and services to be 
provided are best determined by the housing provider and the residents.
Definition of Housing Provider Not Sufficiently Broad
    Comment. Two commenters wrote to express their belief that the 
proposed rule's definition of the term ``housing provider'' was not 
broad enough to cover unincorporated communities comprised of 
individual homeowners.
    HUD Response. The definition of ``housing provider'' set forth in 
the March 14, 1995 proposed rule was intended to cover unincorporated 
communities. This final rule contains a revised definition which 
clarifies that single family communities may qualify for the exemption 
through community groups which effectively represent the interests of 
the residents. Specifically, the revised definition of ``housing 
provider'' reads: ``The term housing provider includes any person or 
entity which represents the property owners of a community in their 
housing interests, including homeowners or resident associations, 
whether or not there is common ownership or operation of any portion of 
a community.''
Revision of Impracticability Provisions
    Comment. Several commenters believed the impracticability 
provisions set forth in proposed Sec. 100.310 should be revised. The 
commenters objected to the statement in proposed Sec. 100.310(b)(1) 
that ``[d]emonstrating that . . . services and facilities are expensive 
to provide is not alone sufficient to demonstrate'' impracticability. 
The commenters believed that this provision unfairly implied that 
``true'' senior communities are those that can afford to have a lot of 
amenities.
    HUD Response. HUD does not agree with the commenters. The ``menu'' 
established by Sec. 100.306(d) and the provisions of Sec. 100.306(e), 
which permit volunteers to provide facilities and services, effectively 
address the issue of cost, and will enable properties without large 
financial resources to qualify for the exemption. It has never been 
HUD's intention to require communities to provide expensive amenities 
in order to meet the ``significant facilities and services'' 
requirement. Moreover, Sec. 100.310(b)(4) lists the income range of the 
residents as a factor in determining impracticability, allowing 
evidence of lack of affordability of facilities or services to be 
considered as part of an impracticability review. 

[[Page 43324]]

Proposed Rule's Impact on Small Entities
    Comment. Two commenters believed the March 14, 1995 proposed rule 
reflected a harsh attitude toward small 55-or-over communities. 
Specifically, the commenters felt that the ``menu'' set forth in 
proposed Sec. 100.306 demonstrated a bias toward larger parks with 
clubhouses and resident organizations. One of the commenters suggested 
that communities with fewer than ``40 or 50 spaces'' be exempted from 
the requirements of the final rule.
    HUD Response. HUD does not believe that any special exemptions are 
required for small 55-or-over communities. The ``menu'' set forth in 
Sec. 100.306 is sufficiently broad to ensure that small communities may 
satisfy the ``significant facilities and services'' requirement without 
undue burden or expense. HUD prepared the list of ``menu'' items by 
reviewing suggestions made by the public commenters to the July 7, 1994 
proposed rule, including the commenters at the five public hearings, as 
well as by carefully reviewing court decisions dealing with this issue. 
The ``menu'' is adequately diverse to cover all types of senior 
properties.
Proposed Rule Imposed an ``Accessibility'' Requirement
    Comment. One of the reasons for the strong opposition to the July 
7, 1994 proposed rule was the belief among seniors that it erroneously 
depicted all seniors as physically frail. In developing the March 14, 
1995 proposed rule, HUD wished to correct this impression. Accordingly, 
the preamble to the proposed rule stated that a facility or service 
does not need to be ``accessible to the disabled in order to be 
classified as `significant' or `specifically designed to meet the 
physical or social needs of older persons'.'' (60 FR 13840, 13841). 
However, many senior commenters believed that the rule imposed an 
accessibility requirement.
    Specifically, the commenters objected to the preamble language 
stating that ``[t]he Department believes that the Act imposes a strict 
burden upon a person claiming the exemption to provide credible and 
objective evidence showing that the facilities and services offered by 
the housing provider were designed, constructed or adapted to meet the 
particularized needs of older persons.'' (60 FR 13840, 13841). The 
commenters believed that the requirement that housing providers select 
two items from category 11, Health/Safety Needs, from the ``menu'' set 
forth in proposed Sec. 100.306, was further proof of an accessibility 
criterion for qualification as 55-or-over housing.
    HUD Response. The commenters misinterpret the language of the 
preamble and the proposed rule. It is the existence of the requisite 
number and type of ``menu'' items, in the aggregate, which qualifies a 
community for the ``housing for older persons'' exemption. Elimination 
of category 11 of the ``menu'' would unfairly discriminate against 
communities which have chosen to provide any of the health/safety 
related items listed in this category. Inclusion of such a category in 
the ``menu'' does not imply that all seniors have difficulty with 
mobility. It simply reflects the fact that some residents of 55-or-over 
communities may desire the provision of several category 11 items to 
facilitate their use and enjoyment of the property.
Proposed Sec. 100.306(f) Undermined Self-Certification
    Comment. Proposed Sec. 100.306(f) listed the criteria by which HUD 
will determine if, in the aggregate, the facilities and services 
provided by a housing provider are ``significant.'' Several commenters 
objected to this provision, claiming that a housing provider's self-
certification would be undermined by the uncertainty of its compliance 
with proposed Sec. 100.306(f).
    HUD Response. HUD does not believe that Sec. 100.306(f) subverts 
the self-certification procedures set forth in Sec. 100.307. Rather, 
the criteria listed in Sec. 100.306(f) provide assurance that housing 
providers will not claim that they are eligible for the exemption based 
on facilities or services which are virtually non-existent, non-
functional or unused. Paragraph (f) of Sec. 100.306 is necessary to 
assure that the facilities and services are truly available in a 
meaningful way to residents.
Self-Certification Should Not Be Made Under Penalty of Perjury
    Comment. Proposed Sec. 100.307(e) stated that a housing provider 
shall sign a self-certification notice ``under penalty of perjury of 
the laws of the United States.'' Several commenters believed that the 
imposition of civil penalties was sufficient to penalize housing 
providers posting false self-certification notices.
    HUD Response. HUD does not agree that Sec. 100.307(e) imposes an 
unjust sanction on housing providers who falsify their self-
certification notices. Absent evidence indicating that the housing 
provider has not met the ``menu'' requirements of Sec. 100.306(c), a 
housing provider who chooses to self-certify will be deemed by HUD to 
be in compliance with the requirements of the Act. Given the force of a 
posted self-certification notice, HUD believes it is justified in 
requiring the high measure of certainty provided by the imposition of 
perjury sanctions. Paragraph (f) of Sec. 100.307 obligates a housing 
provider who has posted a self-certification notice to ensure that the 
listed facilities and services are indeed available.
The Self-Certification Posting Requirements Should Be Revised
    Comment. One commenter believed the posting requirements for the 
self-certification notice should be clarified. Proposed Sec. 100.307(e) 
required that a copy of the self-certification notice be posted ``in 
every public or common area where housing transactions are conducted.'' 
The commenter felt that some housing providers might have difficulty 
complying with this requirement. For example, in the case of homeowner 
associations where all developer sales have been completed, the only 
sales are by individuals, not by the association or a developer. In 
these instances, there are no common areas where ``housing 
transactions'' occur.
    HUD Response. HUD has not revised Sec. 100.307(e). Paragraph (e) of 
Sec. 100.307 simply requires that the self-certification notice be 
posted in every area where housing transactions are conducted. In some 
instances, this may require that the notice be posted in the unit 
itself, or at the real estate office handling the listing of the 
property.
Revision of the Self-Certification Notice
    Comment. One commenter suggested several revisions to the posted 
self-certification notice in order to make it more comprehensible. For 
example, the commenter suggested that a larger typeface notice might be 
easier to read for those seniors requiring eye-glasses.
    HUD Response. HUD will consider formatting suggestions from the 
public before printing copies of the self-certification notice for 
distribution. However, nothing prevents a housing provider from 
enlarging the self-certification notice and posting the larger version, 
or otherwise making it available to residents and the public in 
alternative formats.
Proposed Sec. 100.307(f) Undermined Self-Certification
    Comment. Many commenters objected to proposed Sec. 100.307(f), 
which stated that self-certification notices will not be considered 
``conclusive evidence of eligibility for the housing for older persons 
exemption.'' To many commenters this provision eliminated the main 
reason for self-certification, 

[[Page 43325]]
which is to relieve the anxiety older persons feel that they may be 
violating the law. One of the commenters suggested slightly revising 
proposed Sec. 100.307(f) so as to make the provision less offensive to 
seniors. According to this commenter, the ``not conclusive'' phrase 
should be replaced by a reiteration of HUD's authority to investigate 
fair housing complaints.
    Other commenters urged the elimination of the ``not conclusive'' 
phrase and the insertion of new language strengthening the effect of 
the self-certification notice. Specifically, these commenters believed 
the self-certification notice should shift the burden of proof to 
complainants during fair housing investigations regarding 55-or-over 
status.
    HUD Response. HUD agrees with the commenters that the ``not 
conclusive'' phrase may be misinterpreted by the public so as to 
undermine the certainty provided by a self-certification notice. 
Accordingly, HUD has revised Sec. 100.307(f) by removing the ``not 
conclusive'' phrase and replacing it with the statement that ``the 
posting of a self-certification notice will not preclude the Department 
from investigating a complaint of alleged housing discrimination where 
there is evidence that the housing provider fails to comply with the 
self-certification.''
    HUD wishes to emphasize that the purpose of the self-certification 
mechanism is to provide certainty to 55-or-over communities, not to 
insulate them from legitimate HUD fair housing investigations. HUD may 
receive information which suggests that a community does not meet the 
Act's 80 percent occupancy requirements, or that the self-certification 
notice is incorrect. In these situations, HUD's investigation will 
focus initially on the housing provider's own assurances, through the 
posted self-certification notice, that the requisite facilities and 
services are provided. If the significant facilities and services 
listed in the self-certification notice are actually provided and 
serving the community, the housing provider should not anticipate any 
difficulties in qualifying for that portion of the exemption. 
Additionally, if the provider furnishes facilities and services which 
are not listed on the a self-certification notice (or if no self-
certification notice is posted) HUD will still consider all available 
evidence regarding what facilities and services were available at the 
time of the alleged discriminatory incident.
    HUD wishes to emphasize that nothing in this regulation changes the 
requirement, set forth by the courts and administrative law judges, 
that in a judicial or administrative proceeding, the housing provider 
bears the burden of ultimately proving its eligibility for any 
exemption under the Act by a preponderance of the evidence.
Proposed Exemptions to 80% Occupancy Requirement Exceed Legal Authority
    Comment. Section 807(b)(2)(C)(ii) of the Act, which HUD is 
implementing in Sec. 100.315, requires ``that at least 80 percent of 
the units are occupied by at least one person 55 years or older per 
unit.'' Paragraph (b)(2) of proposed Sec. 100.315 permitted housing 
with unoccupied units to meet the 80 percent occupancy test, so long as 
``at least 80 percent of the occupied units [were] occupied by at least 
one person 55 years of age or over.'' One commenter believed this 
provision contradicted the explicit language of the Act and suggested 
that providers claiming the exemption based on Sec. 100.315(b)(2) be 
required to reserve all units for occupancy by a person 55 years of age 
or older.
    Furthermore, paragraph (b)(4) of proposed Sec. 100.315(b)(4) 
permitted housing with an insufficient percentage of units occupied by 
older persons to meet the 80 percent test, so long as the housing 
``reserve[d] all unoccupied units for occupancy by at least one person 
55 years of age or older until at least 80 percent of the units [were] 
occupied'' by older persons. Another commenter objected to this 
provision, as well as to proposed Sec. 100.315(b)(2), on the grounds 
that the Act's 80 percent occupancy requirements should be strictly 
construed. The commenter believed that any exceptions to the 80 percent 
occupancy requirements set forth in the Act were meant by Congress to 
apply solely to housing occupied before the Act's effective date.
    HUD Response. The Act provides that a property ``shall not fail to 
meet the requirements for housing for older persons by reason of * * * 
(B) unoccupied units. * * *'' (42 U.S.C 3607). HUD believes it is 
justified in interpreting the Act to allow a community which, although 
it does not currently meet the 80 percent occupancy requirement, 
reserves all unoccupied units for occupancy by a person 55 years of age 
or older. This may be the only way for a community which believed that 
it was ineligible for ``housing for older persons'' status, and which 
has therefore permitted occupancy by families, to qualify for the 
exemption. There is no support for the commenter's assertion that this 
provision of the Act is limited to situations occurring before the 
Act's effective date. HUD believes that housing which seeks to qualify 
as ``housing for older persons'' should be able to do so, even if its 
occupied units do not meet the 80 percent occupancy test. Furthermore, 
HUD believes such housing should be protected against claims of 
unlawful discrimination during the qualification process, so long as it 
provides significant facilities and services, has the requisite intent, 
and has reserved all unoccupied units for at least one resident 55 
years of age or older.
Proposed Sec. 100.310(b)(7) Violated Statutory Authority
    Comment. Section 100.310 permitted the granting of a waiver to 
housing providers in cases where it would be impracticable to furnish 
``significant facilities and services.'' Proposed Sec. 100.310(a) 
required that the persons seeking a waiver also demonstrate ``that such 
housing is necessary to provide important housing opportunities for 
older persons.'' Proposed Sec. 100.310(b)(7) would have accorded 
residents' preferences a weight in the waiver determination. If ``90 
percent of the residents of the housing'' had stated that a facility or 
service was ``not necessary or desired'', this certification would have 
been relevant as to whether the provider could have claimed an 
impracticability waiver to the Act's requirements. One commenter felt 
proposed Sec. 100.310(b)(7) would have exceeded HUD's authority under 
the Act. The commenter pointed out that the proposed rule would have 
permitted residents to legitimize discriminatory preferences.
    HUD Response: HUD agrees with the commenter. Upon further analysis, 
HUD has determined that individual residents should not be authorized 
by regulation to waive the rights of future residents, or the rights of 
families with children, by voting on the necessity or desirability of a 
facility or service. Accordingly, proposed Sec. 100.310(b)(7) has been 
eliminated.
Items Listed in Proposed Sec. 100.306 Were Not Significant
    Comment. Many of the commenters believed that the ``menu'' set 
forth in proposed Sec. 100.306 did not list facilities and services 
that were ``significant'' or ``specifically designed for the physical 
or social needs of older persons.'' One of these commenters believed 
that with almost no effort, most properties could qualify under the 
March 14, 1995 proposed rule. Since the commenters believed that the 
requirements of Sec. 100.306 could be easily met, they feared that 
unscrupulous housing 

[[Page 43326]]
providers would utilize the rule to disguise their unlawfully 
discriminatory policies against families with children. These 
commenters also believed that proposed Sec. 100.306 could possibly be 
in violation of existing case law, which states that the ``significant 
facilities and services'' requirement is not met by merely adding minor 
amenities to a traditional development.
    HUD Response. The commenters erroneously focus on the individual 
items listed in Sec. 100.306(d). It is the existence, in the aggregate, 
of the requisite number and type of ``menu'' items that satisfies the 
``significant facilities and services'' requirement. However, in the 
development of this final rule, HUD made the determination that some 
minor revisions to the list of ``menu'' items were necessary. This 
final rule includes these changes.
Self-Certification May Violate Existing Law
    Comment. Proposed Sec. 100.307 permitted housing providers which 
met the requirements of proposed Sec. 100.306 to self-certify their 
compliance with the Act's requirements. Several commenters expressed 
doubts as to the legality of this self-certification mechanism. Some 
commenters believed proposed Sec. 100.307 established a licensing 
procedure unauthorized by Congress.
    These commenters also noted an apparent inconsistency in the 
proposed rule's language regarding self-certification. The language of 
proposed Sec. 100.307 suggested a limited effect for the self-
certification, namely the authorization of ``the publication of 
advertisements, notices or the making of other statements'' necessary 
to establish the property as 55-or-over housing. The preamble, on the 
other hand, indicated greater significance for the self- certification, 
stating that ``absent evidence to the contrary, the Department will 
assume that those communities which have chosen to self-certify are in 
compliance with the Act's requirements.'' (60 FR 13840, 13841). The 
commenters feared that this inconsistency meant HUD intended to shift 
the burden of proof to complainants to show that the housing met the 
exemption requirements. In such a case, the preamble language would 
have exceeded statutory authority, the Act's legislative history, and 
case-law.
    These commenters believed that as an alternative to self-
certification, HUD should certify the 55-or-over housing. The 
commenters believed that only HUD or substantially equivalent state 
agencies could provide meaningful certification of a community's exempt 
status. These commenters suggested that at the very least HUD require 
periodic updates of the self-certification notices.
    HUD Response. HUD has not revised the proposed rule as a result of 
these comments. The rule's self-certification mechanism allows 
communities to determine with certainty whether they comply with the 
``significant facilities and services'' requirement. The posting of a 
self-certification notice merely identifies for the public those 
facilities and services on which the provider bases its claim of 
eligibility for that portion of the ``housing for older persons'' 
exemption. Self-certification is not, nor was it intended to be, a de-
facto licensing procedure.
    There was no inconsistency between the language of the proposed 
rule and the preamble. Absent evidence that the posted self-
certification notice is incorrect, HUD will assume that housing 
providers which have chosen to self-certify are in compliance with the 
Act. However, HUD will still be required to conduct an investigation 
when it is provided with information which indicates that the 
assertions in the self-certification are incorrect or that the property 
otherwise does not qualify for the ``housing for older persons'' 
exemption. This rule does not modify in any way the fact that housing 
providers bear the burden of proving their compliance with the Act's 
requirements during a judicial or administrative enforcement 
proceeding.
    HUD rejects the commenters' suggestion that HUD certify each 
property seeking to qualify as housing for older persons. In addition 
to the fact that such a procedure would be intrusive and involve HUD in 
the day to day operations of non-federal housing, HUD neither has the 
resources nor the desire to inspect the many properties which might 
claim the exemption. Moreover, a HUD-certification procedure might be 
construed as a de-facto licensing mechanism, which is beyond the scope 
of HUD's authority under the Act.
    While this final rule does not require periodic reviews of self-
certification notices, HUD agrees that it is both sensible and 
necessary for housing providers to periodically update such notices. 
These reviews would prevent the filing of fair housing complaints from 
persons claiming the assertions in the posted self-certification notice 
are false.
Self-Certification Is Misleading and Will Deter Legitimate Complaints
    Comment. Some commenters noted that the posting of a self-
certification notice would not preclude a legal challenge to the 
housing community's status as 55-or-over housing. However, these 
commenters believed that the language of proposed Sec. 100.307 would 
lead some communities to believe that self-certification immunizes them 
from such complaints. The commenters felt that the proposed rule's 
language was misleading and could fuel anti-government sentiment. These 
commenters felt that self-certification was ``bad public policy.''
    The commenters found another possibility for confusion in the 
language of proposed Sec. 100.307(f), which permitted housing providers 
which have self-certified to advertise, post notices, or make other 
statements ``evidencing the operation of the property in question . . . 
as excluding families with children as described in section 807(b)(2)of 
the Act.'' The commenters pointed out that this language might be 
incorrectly interpreted to suggest that the exclusion of children is 
required by the ``housing for older persons'' exemption.
    Furthermore, these commenters feared that a prominently displayed, 
``official looking'' self-certification notice would deter families 
from pursuing legitimate fair housing complaints.
    HUD Response. The easy answer to the commenters' ``self 
certification is bad public policy'' argument is the fact that the vast 
majority of the commenters applauded HUD's inclusion of a self-
certification mechanism in the March 14, 1995 proposed rule. HUD 
rejects the notion that self-certification will lead housing providers 
to believe they are ``immunized'' from legitimate fair housing 
complaints.
    HUD reiterates that the purpose of the self-certification 
provisions is to permit communities to ascertain with confidence 
whether they comply with the Act's requirements, not to insulate them 
from HUD investigations of legitimate complaints. A posted self-
certification notice is only as good as the facts which underlie it. It 
is necessary for 55-or-over communities to periodically update the 
self-certification notices in order for them to have the desired 
certainty in case a complaint is filed.
    The commenters were correct in asserting that the Act does not 
require the exclusion of children from housing for older persons. 
Additionally, the Act does not mandate that 100 percent of senior-
housing residents be 55 years of age or older. HUD wishes to emphasize 
that a qualified 55-or-over community may permit the remaining 20 
percent of units to be occupied by persons under 55; allow some small 
number of families 

[[Page 43327]]
with children to reside in the property; and allow some number of units 
to be occupied by surviving spouses, or heirs of a senior resident. 
However, the general intent to be classified as ``housing for older 
persons'' must be continued, as should careful record keeping, to 
ensure that the community does not drop below the 80 percent occupancy 
requirement and to ensure that the requisite intent to be housing for 
older persons is indicated.
Self-Certification Has Federalism Implications
    Comment. One commenter wrote that the easily met requirements of 
proposed Sec. 100.306 posed a danger to individual property rights. The 
commenter believed that the proposed rule would allow some, but not 
all, of the homeowners of a tract or development, without any common 
interests or privity, to organize an association and restrict free 
alienation of the property of the nonmembers.
    HUD Response. HUD does not agree with the commenter. The courts 
have upheld the constitutionality of the ``housing for senior persons'' 
exemption against claims that it amounted to a deprivation of property 
rights. See Senior Civil Liberties Association v. Kemp, 965 F.2d 1030 
(11th Cir. 1992). This final rule merely authorizes a housing provider 
to undertake certain actions in order to qualify for the exemption. The 
rule's self-certification provision has no more impact on Federalism 
issues than does the exemption itself.

II. Other Matters

A. Environmental Impact

    A Finding of No Significant Impact with respect to the environment 
has been made in accordance with HUD regulations at 24 CFR part 50, 
which implements section 102(2)(C) of the National Environmental Policy 
Act of 1969 (NEPA). This Finding of No Significant Impact is available 
for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the 
Office of the Rules Docket Clerk, Office of the General Counsel, 
Department of Housing and Urban Development Room 10276, 451 Seventh 
Street, SW, Washington, DC 20410-0500.

B. Executive Order 12866

    This final rule was reviewed by the Office of Management and Budget 
(OMB) under Executive Order 12866 on Regulatory Planning and Review, 
issued by the President on September 30, 1993. Any changes made in this 
final rule as a result of that review are clearly identified in the 
docket file, which is available for public inspection in the office of 
the Department's Rules Docket Clerk, Room 10276, 451 Seventh Street, 
SW, Washington, DC 20410-0500.

C. Impact on Small Entities

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this final rule before publication and, by 
approving it, certifies that the final rule will not have a significant 
impact on a substantial number of small entities.

D. Executive Order 12606, the Family

    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has determined that this final rule does not 
have potential for significant impact on family-formation, maintenance, 
and general well-being, and, thus is not subject to review under the 
Order.
E. Executive Order 12612, Federalism

    The General Counsel, as the Designated Official under section 6(a) 
of Executive Order 12612, Federalism, has determined that this final 
rule will not have substantial, direct effects on States, on their 
political subdivisions, or on their relationship with the Federal 
government, or on the distribution of power and responsibilities among 
the various levels of government. The Fair Housing Act, and section 919 
of the Housing and Community Development Act of 1992 direct HUD to 
provide further guidance on the meaning of significant facilities and 
services so that States, local governments, and housing providers will 
have a better understanding of what housing is exempt from the Fair 
Housing Act's prohibition against discrimination on the basis of 
familial status.

F. Regulatory Agenda

    This final rule was listed as sequence number 1504 in the 
Department's Semiannual Regulatory Agenda, published on May 8, 1995 (60 
FR 23368, 23373) under Executive Order 12866 and the Regulatory 
Flexibility Act.

List of Subjects in 24 CFR Part 100

    Aged, Fair Housing, Individuals with disabilities, Mortgages, 
Reporting and recordkeeping requirements.

    Accordingly, 24 CFR part 100 is amended as follows:

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

    1. The authority citation for part 100 is revised to read as 
follows:

    Authority: 42 U.S.C. 3535(d) and 3600-3620.

Subpart E--Housing for Older Persons

    2. In subpart E, Sec. 100.304 is revised, and new Secs. 100.305, 
100.306, 100.307, 100.310, 100.315 and 100.316 are added, to read as 
follows:


Sec. 100.304  55 or over housing.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that, at the time of 
an alleged violation of the Act, the housing satisfies the requirements 
of:
    (1) Sections 100.304, 100.305, 100.306, 100.315 and 100.316; or
    (2) Sections 100.310, 100.315 and 100.316.
    (b) With reference to complaints filed pursuant to the Act, this 
means that the person or entity claiming the exemption must 
affirmatively prove by a preponderance of evidence as of the date of an 
alleged violation of the Act that the housing meets the requirements of 
paragraph (a) of this section.
    (c) For purposes of this part, older persons means persons 55 years 
of age or older.
    (d) For purposes of this part, housing provider means:
    (1) The owner or manager of a housing facility; or
    (2) The owner or manager of the common and public use areas of a 
housing facility, where the dwelling units are individually owned.
    (3) The term ``housing provider'' may include any person or entity 
which operates a housing facility. The term ``housing provider'' 
includes any person or entity which represents the property owners of a 
community in their housing interests, including homeowners or resident 
associations, whether or not there is common ownership or operation of 
any portion of a community.
    (e) For purposes of this part, occupied by means one or more 
persons over the age of 55 actually occupying a unit at the time of an 
alleged violation of the Act.
    (f) With reference to self-certifications of compliance with the 
provisions of this part, the housing provider claiming the exemption 
for 55 and older housing may demonstrate publicly, by the posting of 
one of the notices described in Sec. 100.307, compliance with the 
provisions of this part.


Sec. 100.305  Criteria.

    (a) The provisions regarding familial status in this part shall not 
apply to 

[[Page 43328]]
housing intended and operated for occupancy by at least one person 55 
years of age or older per unit, pursuant to this part.
    (b) The housing shall have significant facilities and services 
specifically designed to meet the physical or social needs of older 
persons as described in Sec. 100.306.
    (c) At least 80 percent of the units in the housing shall be 
occupied by at least one person who is at least 55 years of age or 
older as described in Sec. 100.315.
    (d) The housing provider shall publish and adhere to policies and 
procedures which demonstrate an intent by the housing provider to 
provide housing for older persons as described in Sec. 100.316. The 
publication of policies and procedures describing an intent to provide 
housing as ``adult housing'' shall not suffice for this purpose.


Sec. 100.306  Significant facilities and services specifically designed 
for older persons.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person or 
entity asserting the exemption affirmatively demonstrates through 
credible and objective evidence that facilities and services 
specifically designed to meet the needs of older persons are 
``significant''. Significant facilities and services which are 
specifically designed for older persons are those which actually or 
predictably benefit the health, safety, social, educational or leisure 
needs of older persons.
    (b) The facilities and services provided by a housing provider are 
significant and specifically designed to meet the housing needs of 
older persons when the housing provider meets the criteria found in 
paragraphs (c), (d), and (e) of this section and complies with the 
criteria found in paragraph (f) of this section.
    (c) A housing provider provides significant facilities and services 
if it makes available, directly or indirectly, at least 2 facilities or 
services in at least five categories described in paragraph (d) of this 
section, including at least 2 of the facilities described in paragraph 
(d)(10) of this section (category 10) or in paragraph (d)(11) of this 
section (category 11).
    (d) Facilities and services which may be considered for purposes of 
qualifying for the 55 and older housing exemption are the following:
(1) Category #1 (Social Needs)
    Social and Recreational Services provided on a regular, organized 
basis:

--softball, golf, shuffleboard tournaments, lawn bowling, billiards or 
similar team activity
--bridge club, card games, organized chess or checkers
--exercise classes-- low-impact, stretching, t'ai-chi, swim-therapy
--bingo
--fellowship meetings
--musical theater group
--dances, square dancing, polka, ballroom dancing,
--at least weekly potluck dinners, breakfasts, luncheons, or coffees
--coordinated holiday parties for residents
--Lions club, clubs or classes for sewing, needlepoint, art, gardening, 
music, books, golf, bowling, photography, travel, etc.
--cooking classes
--crafts classes: ceramics, macrame, woodworking, jewelry, quilting, 
painting
--field trips--bowling, sightseeing, concerts, plays, hiking, shopping 
outlets
--fashion shows
--on-site movies or other theatrical events
--liaison/coordination with activities at community-wide senior centers 
and activities
--emergency meal service for residents who are ill or in need
--organized travel opportunities
(2) Category #2 (Educational Needs)
    Continuing education activities:

--at least monthly presentations on subjects such as health care, 
nutrition, stress management, medicare, insurance, social security, tax 
preparation, vacation planning, gardening, crime prevention
--consumer protection education
--regularly offered CPR classes
--regularly offered language study classes
--regularly offered videotapes on health care
--courses available at local educational institutions
--library with magazines designed for older persons and material 
available in large print
(3) Category #3 (Educational Needs)
    Information and counseling services:

--providing new residents with package of information about local 
services of interest to seniors
--bulletin board for exchange of information or services
--printed resident directory provided to each resident
--free information on cable TV programs for residents--internal or 
external support groups for residents
--seminars on the aging process
--seminars on estate planning, dealing with death or other issues 
affecting older persons
--on-site legal services
--informational sessions on fire safety, mental health issues, 
political and environmental issues
--seminars on governmental benefits programs
(4) Category #4 (Physical Needs)
    Homemaker services:

--employees assist with housework or yardwork
--organized committee of residents to perform light household tasks or 
yard work for those who cannot do them themselves
--referrals to housecleaning services
--bill-paying services
--pet care/pet therapy services
--minor home repair service
--tool loan service
(5) Category #5 (Safety Needs)
    Outside maintenance/health and safety services:

--on-staff medical personnel with first aid/CPR training
--on-staff repair, maintenance and painting services
--meals on wheels
--snow shoveling and plowing
--system for referrals to doctors or other health care professionals
--regular system to contact residents who are house-bound to make sure 
they are o.k.
--system for referrals for transportation services for residents
--referrals to income tax preparers
--referrals to repair and maintenance services
--security guards/patrols, organizing neighborhood or block watch
--organizing committee of residents to do household repairs and yard 
work for those who cannot do them themselves
--exterior lighting and alarm systems monitoring
--vacation house watch
--limited access to property by controlled access gate or similar 
system
(6) Category #6 (Health Needs)
    Emergency and preventative health care programs:

--meetings about nutrition, back care, breast cancer/self-examination/
mammogram, prostate cancer screening, vision care, or other health care 
topics (see continuing education) 

[[Page 43329]]

--monthly blood pressure checks
--annual flu vaccine shots available
--periodic vision or hearing tests
--staff or volunteers pick up food from social services for mobility 
impaired seniors
--organizing committee or buddy system of residents to do errands for 
people who become ill and/or to stay with sick persons while their 
spouses do errands
--emergency telephone network, staff or volunteers monitor people who 
have serious medical problems
--doctor/medical facilities located within two miles of facility
--health care equipment pool for resident use
(7) Category #7 (Social/Health Needs)
    Congregate dining:

--available congregate dining for at least one meal each day
--sit-down meal service
--special menus for dietary needs
--activities conducted in conjunction with congregate dining
(8) Category #8 (Transportation)
    Transportation to facilitate access to social services:

--transportation provided to doctors' offices, shopping, religious 
services, outside social or recreational activities
--public bus stop or train station within walking distance and bus 
schedules and maps available
--organized system to provide transportation for residents who cannot 
drive
--sign-up board for shared transportation needs
--shared ride services to social events, functions, medical care, 
shopping
(9) Category #9 (Social Needs)
    Services to encourage and assist residents to use available 
facilities and services:

--volunteer or staff activity planner
--swimming or water aerobics instructors
--dance or exercise instructors
--crafts instructors
--newsletters, newspapers or flyers informing residents of activities, 
trips, clubs, etc.
--monthly calendar of events
--resident council or committees to encourage participation in 
activities
(10) Category #10 (Leisure Needs)
    Social and Recreational Facilities:

--clubhouse, communal kitchen, or communal dining area
--library with large print books or subscriptions to publications 
targeted to older persons
--sauna, jacuzzi or whirlpool
--recreation or game room, arts and crafts room, community room or 
meeting room
--television room for communal use with VCR
--ping pong, pool or billiard tables, shuffleboard courts, horseshoe 
pits or bocce ball (with functional equipment)
--golf course
--stage, piano and dance floor
--woodworking shop
--restaurant for resident use
--bank
--legal assistance
--travel agency
--convenience store
--barber shop
--dry cleaners
--hair salon
--lapidary
--kiln
--fishing pond
(11) Category #11 (Health/Safety Needs)
    Accessible physical environment:

--accessible clubhouse
--at least one accessible bathroom facility in public and common use 
areas
--ramps (curbs or drainage ditches are cut or ramped to allow 
wheelchair/walker access)
--ramped sidewalks in public and common use areas; stairs at a minimum
--benches in all public and common use areas
--assigned and designated parking spaces, including handicapped parking
--accessible swimming pool (i.e., ramped entrance to pool area)
--accessible management office
--accessible dining area or activity area
--vans, buses available with wheelchair lifts or easy access for 
persons with mobility difficulties
--lift to assist in swimming pool use
--Amplifiers provided on at least 25% of public phones
(12) Category #12 (Social, Leisure, Health, Safety or Educational 
Needs)
    Other:

--Any facility or service which is not listed above but which is 
designed to meet the health, safety, social or leisure needs of persons 
who are 55 and older and which is actually available to and used by 
residents of the property.
    (e) A housing provider provides significant facilities and services 
if the facilities and services are provided on the premises by paid 
staff, resident volunteers, or by agencies, entities or persons other 
than the housing provider. A housing provider provides significant 
facilities and services if the facilities or services are provided off 
the premises by paid staff, resident volunteers, or by agencies, 
entities or persons other than the housing provider, provided that if 
facilities or services are made available off the premises, the housing 
provider, through paid staff, resident volunteers, or by agencies, 
entities or persons other than the housing provider, shall make 
available transportation services or coordination of information and 
transportation resources which ensure that residents are aware of and 
have ready access to such facilities or services.
    (f) In determining whether a housing provider provides significant 
facilities and services, the Department will evaluate the facilities or 
services that meet the requirements of Sec. 100.305 by the following 
criteria to determine whether the facilities in the aggregate and the 
services in the aggregate are ``significant'':
    (1) The extent to which a facility or service can accommodate the 
older population of the housing facility. The capacity of each facility 
or service specifically designed to meet the physical or social needs 
of older persons depends upon but is not limited to such factors as:
    (i) The size of the facility in relationship to the scope of the 
service offered;
    (ii) The length of time during which the facility or service is 
made available or the service is offered;
    (iii) The frequency with which the facility or service is made 
available or the service is offered; and
    (iv) Whether the facility or service is offered only at one 
location or there are a number of locations at which the facility is 
made available or at which the service is offered.
    (2) The extent to which the facility or service will be of benefit 
to older persons, given the climate and physical setting of the housing 
facility.
    (3) The extent to which the facility or service is actually usable 
by and regularly available to residents on a day-to-day basis.


Sec. 100.307  Self-Certification.

    (a) A housing provider may indicate, by display of a notice 
complying with this part, its intent to provide housing for older 
persons in substantially the same form as the self-certification form 
which will be made available by the Office of Fair Housing and Equal 
Opportunity.

[[Page 43330]]

    (b) Such a notice shall be provided by the Department, and shall 
include, at a minimum, a certification of compliance with Sec. 100.315 
and an indication of the housing provider's intent to provide, and its 
certification that it does in fact provide, facilities and services 
which comply with Sec. 100.306.
    (c) Such a notice shall be signed by one or more housing providers, 
with authority to sign.
    (d) Such a notice shall be signed under penalty of perjury of the 
laws of the United States.
    (e) Such a notice shall be posted in every public or common area 
where housing transactions are conducted.
    (f) A copy of a current self-certification shall be considered by 
the Department to be sufficient evidence of compliance with the Act to 
allow the publication of advertisements, notices or the making of other 
statements as evidencing the operation of the property in question as 
housing for older persons and as excluding families with children as 
described in section 807(b)(2) of the Act. However, the posting of a 
self-certification notice will not preclude the Department from 
investigating a complaint of alleged housing discrimination where there 
is evidence that the housing provider fails to comply with the self-
certification.


Sec. 100.310  Impracticability.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person or 
entity affirmatively demonstrates through credible and objective 
evidence that the housing satisfies the requirements of Secs. 100.305, 
100.306, 100.315 and 100.316 or Secs. 100.310, 100.315 and 100.316. 
Housing satisfies the requirements of Sec. 100.310 if it is not 
practicable to provide significant facilities and services designed to 
meet the physical or social needs of older persons and the housing 
facility is necessary to provide important housing opportunities for 
older persons.
    (b) In order to satisfy the requirements of Sec. 100.310 the 
housing provider must affirmatively demonstrate through credible and 
objective evidence that the provision of significant facilities and 
services designed to meet the physical or social needs of older persons 
would result in depriving older persons in the relevant geographic area 
of needed and desired housing. The following factors, among others, are 
relevant in meeting the requirements of Sec. 100.310:
    (1) Whether the owner or manager of the housing facility has 
endeavored to provide significant facilities and services designed to 
meet the physical or social needs of older persons either by the owner 
or by some other entity. Demonstrating that such services and 
facilities are expensive to provide is not alone sufficient to 
demonstrate that the provision of such services is not practicable.
    (2) The amount of rent charged, if the dwellings are rented, or the 
price of the dwellings, if they are offered for sale.
    (3) The geographical or other physical limitations inherent in the 
property which makes the provisions of facilities or services 
impracticable.
    (4) The income range of the residents of the housing facility.
    (5) The demand for housing for older persons in the relevant 
geographic area.
    (6) The vacancy rate of the housing facility.
    (7) The availability of other similarly priced housing for older 
persons in the relevant geographic area. If similarly priced housing 
for older persons with significant facilities and services is 
reasonably available in the relevant geographic area then the housing 
facility does not meet the requirements of Sec. 100.310.


Sec. 100.315  80 percent occupancy.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person or 
entity demonstrates through credible and objective evidence that 
housing satisfies the requirements of Secs. 100.305, 100.306, 100.315 
and 100.316 or Secs. 100.310, 100.315 and 100.316. Housing satisfies 
the requirements of Sec. 100.315 if at least 80 percent of the units in 
the housing facility are occupied by at least one person 55 years of 
age or older per unit except that a newly constructed housing facility 
for first occupancy after March 12, 1989 need not comply with 
Sec. 100.315 until 25 percent of the units in the facility are 
occupied.
    (b) Housing satisfies the requirements of this section even though:
    (1) On September 13, 1988, under 80 percent of the occupied units 
in the housing facility are occupied by at least one person 55 years of 
age or older per unit, provided that at least 80 percent of the units 
that are occupied by new occupants after September 13, 1988 are 
occupied by at least one person 55 years of age or older.
    (2) There are unoccupied units, provided that at least 80 percent 
of the occupied units are occupied by at least one person 55 years of 
age or over.
    (3) There are units occupied by employees of the housing provider 
(and family members residing in the same unit) who are under 55 years 
of age provided they perform substantial duties directly related to the 
management or maintenance of the housing.
    (4) There are insufficient units occupied by at least one person 55 
years of age or over to meet the 80 percent requirement, but the 
housing provider, at the time the exemption is asserted:
    (i) Reserves all unoccupied units for occupancy by at least one 
person 55 years of age or older until at least 80 percent of the units 
are occupied by at least one person who is 55 and older; and
    (ii) Meets the requirements of:
    (A) Secs. 100.305, 100.306 100.307 and 100.316; or
    (B) Secs. 100.310, 100.315, and 100.316.
    (iii) Where application of the 80 percent rule results in a 
fraction of a unit, that unit shall be considered to be included in the 
units which must be occupied by at least one person who is 55 or older.


Sec. 100.316  Intent to provide housing for older persons.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person or 
entity proves that the housing satisfies the requirements of 
Secs. 100.305, 100.306, 100.315 and 100.316 or Secs. 100.310, 100.315 
and 100.316. Housing satisfies the requirements of Sec. 100.316 if the 
owner or manager of a housing facility publishes and adheres to 
policies and procedures which demonstrate an intent by the housing 
provider to provide housing for persons 55 years of age or older.
    (b) The following factors, among others, are relevant in 
determining whether the owner or manager of a housing facility has 
complied with the requirements of Sec. 100.316:
    (1) The manner in which the housing facility is described to 
prospective residents.
    (2) The nature of any advertising designed to attract prospective 
residents.
    (3) The use of age verification procedures.
    (4) Lease provisions.
    (5) Written rules and regulations.
    (6) Actual practices of the owner or manager in enforcing relevant 
lease provisions and relevant rules or regulations.
    (7) The public posting of the self-certification described in this 
part.


[[Page 43331]]

    Note: The following appendix, ``Housing for Older Persons--Self-
Certification,'' will not be codified in title 24 of the Code of 
Federal Regulations.

    Dated: July 31, 1995.
Susan Forward,
Deputy Assistant Secretary for Enforcement and Investigations.
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[FR Doc. 95-20222 Filed 8-17-95; 8:45 am]
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