[Federal Register Volume 62, Number 4 (Tuesday, January 7, 1997)]
[Notices]
[Pages 1026-1029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-294]



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Part II





Department of Housing and Urban Development





_______________________________________________________________________



Site-Based Waiting Lists; Notice

  Federal Register / Vol. 62, No. 4 / Tuesday, January 7, 1997 /  
Notices  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4131-N-01]


Notice on Site-Based Waiting Lists

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

ACTION: Notice.

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SUMMARY: This notice invites certain public housing agencies (``PHAs'') 
to request approval of tenant selection and assignment plans that vary 
from general program requirements in order to implement site-based 
waiting lists at public housing sites under certain circumstances. The 
notice explains HUD policy on this matter and describes the procedure 
for making such requests. HUD will approve under this notice only those 
requests that are consistent with Title VI of the Civil Rights Act of 
1964 (``Title VI'') and that meet the other requirements of this 
notice.

EFFECTIVE DATE: January 7, 1997.

COMMENT DUE DATE: March 10, 1997.

FOR FURTHER INFORMATION CONTACT: Rod Solomon, Senior Director for 
Policy and Legislation, or Stephen I. Holmquist, Policy Development 
Advisor, Office of Policy, Program, and Legislative Initiatives, Room 
4116, (202) 708-0713, or Linda Campbell, Director, Marketing, Leasing 
and Management Division, Office of Public and Assisted Housing, Room 
4206, (202) 708-0744, Department of Housing and Urban Development, 451 
Seventh Street, SW., Washington, DC 20410, (202) 708-0713; or Larry 
Pearl, Office of Fair Housing and Equal Opportunity, Room 5226, (202) 
708-0288, U.S. Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410, (202) 708-4252. Hearing or speech-
impaired individuals may access these numbers via TTY by calling the 
Federal Information Relay Service at 1-800-877-8339. (With the 
exception of the ``800'' number, these are not toll-free numbers.)

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act Statement

    The information collection requirements contained in this Notice 
have been submitted to the Office of Management and Budget (OMB) for 
review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) 
and have been approved and assigned OMB control number 2577-0214, which 
expires March 31, 1997. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless the collection displays a valid control number.

II. Solicitation of Comments

    HUD invites comments on this notice. The comments will be taken 
into consideration in the event HUD decides to revise the procedures.

III. Site-Based Waiting Lists

1. Purpose

    This notice invites certain public housing agencies (``PHAs'') to 
request approval of tenant selection and assignment plans that vary 
from general program requirements in order to implement site-based 
waiting lists at public housing sites under certain circumstances. The 
notice explains HUD policy on this matter and describes the procedure 
for making such requests. HUD will approve under this notice only those 
requests that are consistent with Title VI of the Civil Rights Act of 
1964 (``Title VI'') (42 U.S.C. 2000d-1 et seq.) and that otherwise meet 
the requirements of this notice.

2. Applicability

    This notice applies only to PHAs that have Annual Contributions 
Contracts covering a total of 1,250 or more public housing units. For 
each such PHA, the applicability of this notice (under the criteria 
described below in this Section) may be determined with respect to all 
of the PHA's public housing sites, or may be determined separately with 
respect to either the PHA's mixed-population and elderly-designated 
sites or the PHA's general occupancy sites (i.e., all sites other than 
mixed-population and elderly-designated sites). Regardless of which of 
these options a PHA chooses, this notice is applicable where:
    (a) At least 90 percent of the occupants of the sites and at least 
90 percent of the applicants on the applicable public housing waiting 
list(s) are persons of the same race; or
    (b) At least 90 percent of the occupants of the sites and at least 
90 percent of the applicants on the applicable public housing waiting 
list(s) are of the same ethnicity.
    This notice does not apply to PHAs which are operating under a 
court order involving civil rights violations; to PHAs for which HUD 
has made a determination of apparent non-compliance with Title VI or 
which are currently operating under a Voluntary Compliance Agreement; 
or to PHAs that are operating under a settlement or conciliation 
agreement providing for class-wide relief for race or national origin 
discrimination under the Fair Housing Act.
    HUD's authority under 24 CFR 1.4(b)(2)(iii) to approve tenant 
selection and assignment plans that vary from general program 
requirements remains in effect for PHAs that do not fit within the 
bounds of this notice.
    For purposes of this notice, each ``site'' may consist of:
    (a) One public housing development,
    (b) More than one public housing development (by reason of 
proximity or other geographic characteristics), or
    (c) A portion of one or more public housing developments (in the 
case of scattered-site developments), as proposed by the PHA and 
approved by HUD under this notice. For purposes of this notice, a PHA 
proposing site-based waiting lists at its general occupancy sites must 
include all of its general occupancy units in an identified site, and a 
PHA proposing site-based waiting lists at its mixed population and 
elderly-designated sites must include all of its mixed population and 
elderly-designated units in an identified site.

3. Background.

    Title VI prohibits discrimination on the grounds of race, color, 
and national origin in any program or activity receiving Federal 
financial assistance. PHAs, as recipients of HUD funds, are barred by 
Title VI from subjecting housing residents to segregation or separate 
treatment on any of these grounds. HUD has implemented Title VI through 
regulations at 24 CFR part 1. With respect to public housing 
admissions, the provisions of 24 CFR 1.4(b)(2)(ii) require PHAs to 
assign eligible applicants to dwelling units in accordance with a plan 
providing for assignment on a community-wide basis. Under this 
authority, HUD generally requires assignment of applicants to dwelling 
units from a single waiting list (although PHAs may have one waiting 
list for general occupancy units and another for mixed population and 
elderly-designated units). However, HUD also has existing authority to 
approve plans that vary from the general requirement when such plans 
involve housing programs in which persons of one race or of one 
ethnicity predominate and when such plans would be consistent with 
Title VI. For the reasons stated below, this notice invites PHAs to 
request approval of such plans.
    PHAs that do not meet the criteria set forth in Section 2 of this 
notice may request approval of site-based waiting lists. However, such 
requests will not be considered under the special processing guidelines 
in this notice.

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4. Statement and Explanation of HUD Policy

    Federal funding of public housing began with the United States 
Housing Act of 1937. For the first 25 years of that Act, the Federal 
government permitted, if not encouraged, segregation by race in public 
housing developments. Active attempts by the Federal government to 
desegregate public housing began only with Executive Order 11063 issued 
by President Kennedy in November 1962. The order banned discrimination 
prospectively in federally funded housing, but sought to end 
discrimination in existing developments only through persuasion and 
voluntary activity. Executive Order 11063 was followed by passage of 
the 1964 Civil Rights Act, Title VI of which barred discrimination in 
all federally assisted programs and provided for termination of funding 
where discrimination continued.
    Policies to implement Title VI through tenant selection and 
assignment policies thereafter took a variety of forms. The first 
iteration embodied ``freedom of choice'' principles. Applicants were 
allowed to apply to the housing development of their choice based on 
available units and their place on a waiting list. During 
implementation of this policy, segregation did not appreciably 
diminish. Freedom of choice policies did not address the effects of the 
site selection process, by which developments had been located in all-
white and all-black areas with tenants assigned accordingly. In many 
cases, the choice for tenants after these patterns were established was 
between an all-black development in a black neighborhood or an all-
white development in a white neighborhood. An integrated development, 
much less an integrated neighborhood, was rarely an option. Even 
assuming fair administration of the policy, which was not always the 
case, it did not effectively address the complexities of the legacy of 
segregation.
    HUD next required PHAs to adopt community-wide waiting lists in 
which applicants were offered vacancies based on tenant selection 
preferences and the date and time of application. If offers were 
rejected, the applicants lost their standing on the waiting list. In 
spite of this effort, segregation continued, apparently unabated and 
the situation in many communities grew worse; compliance was spotty and 
mechanisms to ensure it (hearings and fund cut-offs) were either 
unwieldy or politically controversial. Where the policy was enforced, 
it sometimes acted to discourage all but the most desperate applicants. 
Over time, the policy led applicants to self-select: applicants willing 
to be placed in those developments with vacancies (often less desirable 
developments) tended over time to be minority families for whom public 
housing was a last resort.
    Other low-income federally assisted housing programs created after 
Executive Order 11063 and Title VI provided housing in privately owned 
apartment buildings and developments. Unlike public housing, each 
private development established its own waiting list. This housing was 
disproportionately utilized by non-minority applicants, leading to 
further isolation of minority tenants in public housing. Segregation 
was thus exacerbated, and the use of a community-wide waiting list to 
promote integration in general occupancy public housing was rendered 
even more ineffective.
    For these and other reasons, the resident populations of a number 
of large PHAs today are predominately of one race or of one ethnicity. 
Assignment of applicants to dwelling units in accordance with a plan 
providing for assignment from a single waiting list is not an effective 
means of furthering desegregation for such PHAs. Abandoning this policy 
in favor of one that allows applicants more options in these 
circumstances should not be expected to diminish civil rights 
protections and will likely promote other important values.
    For instance, in an almost exclusively one race public housing 
system, it is very common to see only members of that race applying for 
housing with that PHA. In this situation, a change in tenant policy is 
unlikely to worsen segregation. It may, in fact, improve the racial 
diversity and integration within the PHA and its developments. 
Individuals may be more willing to apply for a particular public 
housing site with which they are familiar, even if they would be a 
racial minority within that site. Thus, the site-based waiting list 
option may increase racial or ethnic diversity within the PHA's 
developments. As long as it did not lead to resegregation or similar 
problems, the policy will likely have a positive impact on the fair 
housing environment within the PHA.
    On the other hand, if as a result of implementing site-based 
waiting lists, a PHA showed signs of becoming more segregated, the fact 
that HUD had approved the original application for site-based lists 
would not insulate the PHA from compliance with Title VI and other 
applicable civil rights laws. This circumstance could arise if an 
approved PHA began marketing its various developments on a racial or 
ethnic basis. It could also occur if other changes in operations, such 
as changes to preference rules or demolition of a significant portion 
of the PHA's stock, appear to cause the site-based waiting list policy 
to have an unanticipated discriminatory impact.
    Site-based waiting lists can help to foster a sense of community in 
public housing neighborhoods by strengthening existing ties to family, 
school, work, and neighborhood institutions and can also promote other 
policy objectives of the public housing program. For example, allowing 
applicants to move to the development of their choice, rather than 
assigning them the first available unit, may attract to public housing 
communities a more diverse population with a broader range of incomes. 
As a result, more working families may apply to and move into public 
housing, providing role models and possibly access to information about 
job opportunities for current public housing residents. Serving 
households with a broader range of incomes would also lead to a 
reduction in PHA operating subsidy needs.
    In addition, recently-enacted and proposed program reforms will 
make PHAs in the future much more closely linked to local housing 
markets. PHAs will be required to make market-influenced decisions 
about rent levels, income range preferences, the viability of their 
developments, and other issues that are necessarily site-based. Site-
based waiting lists could be an important part of that new approach to 
public housing management.
    Therefore, for the reasons stated above, this notice announces that 
HUD will, subject to specific conditions, grant approval of tenant 
selection and assignment plans involving site-based waiting lists where 
HUD determines that, due to the predominance of persons of one race or 
of one ethnicity both in the current resident population and on the 
applicable community-wide applicant waiting list, a community-wide 
waiting list does not serve the goals of Title VI in any demonstrable 
way, and that site-based waiting lists are consistent with Title VI.

5. Submission and Review of Requests

A. PHA Submission Requirements
    A PHA may request HUD approval to implement site-based waiting 
lists under this notice by submitting its plan and the rationale for it 
to HUD under the procedures described in Section 6, below. No such 
request shall be granted

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without the approval of the Assistant Secretary for Fair Housing and 
Equal Opportunity (``FHEO'') and the Assistant Secretary for Public and 
Indian Housing (``PIH''). Any such plan must include all of the PHA's 
general occupancy sites and/or all of the PHA's mixed-population and 
elderly-designated sites. This notice does not address a PHA's request 
to implement site-based waiting lists at some of its sites and not at 
others within these two occupancy types.
    A PHA's request for HUD approval of site-based waiting lists under 
this notice must also include the information described below. Where a 
site is composed of more than one development or a portion of one or 
more developments, then the PHA must provide the required information 
for both the site and for the corresponding development(s).
    a. For each development/site operated by the PHA:

--The development name, development number, occupancy type (i.e., 
general occupancy, mixed-population, or elderly-designated), and number 
of units by bedroom size;
--Date the development/site originally became available for public 
housing occupancy;
--Whether the development/site was originally occupied on a segregated 
basis by race or by ethnicity (as applicable), if that information is 
available; and
--Racial or ethnic composition (as applicable), by bedroom size;

    b. For the general occupancy and for the mixed-population and 
elderly-designated waiting lists, respectively, the PHA must provide 
the date of the oldest active application, the number of applicants on 
the list, the racial or ethnic composition, (as applicable), of the 
waiting list by bedroom size and an estimate of the length of the wait 
for an offer by bedroom size.
    c. For the PHA's Section 8 program:

--The number of certificates and vouchers currently in use by race or 
by ethnicity (as applicable), and bedroom size; and
--The length and composition of the waiting list by race or by 
ethnicity (as applicable), and by bedroom size.

    d. All location(s) (e.g., developments, sites, offices, or other 
places) at which the PHA accepts applications for public housing.
    e. The PHA's explanation of:
    (1) How the proposed site-based waiting list plan will improve the 
PHA's public housing program through offering greater choice to 
applicants, attracting working families to public housing, or through 
other benefits, and
    (2) Why the plan is consistent with Title VI.
    f. A summary of the PHA's current and proposed public housing 
tenant selection and assignment procedures along with a description of 
any Consent Decrees, Voluntary Compliance Agreements, or other 
documentation related to past or current occupancy problems and any 
measures taken to correct such problems.
B. Other Information for HUD Review
    In reviewing such requests, HUD will also consider the following 
information, which is already available to HUD:
    a. Race, ethnicity, family (i.e., non-elderly), disabled, and 
elderly population data for:
    (1) Persons living in the relevant Metropolitan Statistical Area 
(``MSA'');
    (2) Persons living in the PHA's jurisdiction;
    (3) Income-eligible persons living in the relevant MSA; and
    (4) Income-eligible persons living in the jurisdiction.
    b. Racial or ethnic composition of the non-PHA housing in the 
neighborhood around the PHA development/site.

6. HUD Processing of Requests

    PHA requests for HUD approval of site-based waiting lists shall be 
processed in the following manner:
    a. A PHA must submit one copy of its request to the Assistant 
Secretary for Fair Housing and Equal Opportunity (``FHEO'') at HUD 
Headquarters, who shall have lead responsibility to review the request, 
and who shall provide a copy of it to the Assistant Secretary for 
Public and Indian Housing (``PIH''), Attention: Marketing and Leasing 
Management Division. The PHA must also submit one copy of the request 
to the Director of FHEO at the local HUD office, who shall provide 
copies of it to the local Director of PIH, the Secretary's 
Representative, and the State Coordinator or Area Coordinator. The 
PHA's request must include the name and telephone number of a contact 
person who understands how the proposed system is to work, who can 
answer relevant questions, and who can clarify the policies and 
procedures described in the request. The Assistant Secretary for FHEO 
and the Assistant Secretary for PIH will make the final determination 
on the request. HUD will endeavor to process all complete requests 
within 60 days of receipt by the Assistant Secretary for FHEO.
    b. HUD will approve PHA requests to implement site-based waiting 
lists that are consistent with Title VI and that meet the other 
requirements of this notice, as follows:
    (1) The PHA has Annual Contributions Contracts covering 1,250 or 
more public housing units;
    (2) (a) At least 90 percent of the occupants of all of the PHA's 
public housing units, of the PHA's mixed-population and elderly-
designated units, or of the PHA's general occupancy units, as 
applicable, and at least 90 percent of the applicants on the applicable 
public housing waiting list(s), are persons of the same race; or (b) at 
least 90 percent of the occupants of all of the PHA's public housing 
units, of the PHA's mixed-population and elderly-designated units, or 
of the PHA's general occupancy units, as applicable, and at least 90 
percent of the applicants on the applicable public housing waiting 
list(s) are of the same ethnicity. (See Section 2, above, regarding the 
separate application of this notice to a PHA's mixed-population and 
elderly-designated sites and to its general occupancy sites);
    (3) The PHA is not operating under a court order involving civil 
rights violations; has not been found to be in non-compliance with 
Title VI and is not currently operating under a Voluntary Compliance 
Agreement; and is not operating under a settlement or conciliation 
agreement providing for class-wide relief for race or national origin 
discrimination under the Fair Housing Act; and
    (4) The PHA submits Multi-Family Tenant Characteristics Survey 
(MTCS) reports (HUD Form 50058) in a complete and timely manner.
    c. In addition, all HUD approvals under this notice will be subject 
to the following conditions:
    (1) Site-based waiting lists must be implemented for all general 
occupancy sites and/or all mixed-population and elderly-designated 
sites;
    (2) All locations where a PHA accepts applications, including 
development/site offices or a central office, must accept applications 
for admission at all of the PHA's sites. If a PHA implements site-based 
waiting lists at its general occupancy sites, but not at its mixed-
population and elderly-designated sites, then the PHA may choose not to 
accept general occupancy applications at its mixed-population and 
elderly-designated sites. If a PHA implements site-based waiting lists 
at its mixed-population and elderly-designated sites, but not at its 
general occupancy sites, then the PHA may choose not to accept mixed-
population and elderly-designated applications at its general occupancy 
sites.

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    (3) The PHA must make available basic information about each site 
(location, occupancy, number and size of units, number and size of 
accessible units, availability and accessibility of amenities such as 
day care, security, transportation, and training programs) to all 
applicants at all sites;
    (4) Preference policies established by PHAs must operate in 
accordance with law and HUD regulation. Preference policies must be 
applied in a non-discriminatory manner.
    (5) All applicants may apply to any site(s) they choose, subject to 
valid, current PHA admissions policies. Applicants currently on the 
waiting list will maintain their original application date. However, in 
its request under this notice, a PHA may request HUD approval to limit, 
for reasons of administrative efficiency, the number of site-based 
waiting lists to which an applicant may apply.
    (6) The PHA must provide each applicant with an estimate of the 
period of time the applicant would likely have to wait to be admitted 
to units of different sizes and types (e.g., regular or accessible) at 
each of the different sites.
    (7) All offers of housing must be made from a central location. 
Regardless of how many site-based waiting lists an applicant may be on, 
an applicant's refusal of an offer, without good cause, at any site, 
will result in the applicant's name being dropped to the bottom of all 
public housing waiting lists at that PHA on which the applicant's name 
appears.

7. HUD Monitoring

    HUD will monitor the implementation of site-based waiting lists 
approved under this notice for continued compliance with Title VI 
annually.

IV. Findings and Certifications

Environmental Impact

    In accordance with 24 CFR 50.19(c)(3) of the HUD regulations, the 
policies and procedures contained in this rule set out 
nondiscrimination standards and, therefore, are categorically excluded 
from the requirements of the National Environmental Policy Act.

Executive Order 12612, Federalism

    The General Counsel, as the Designated Official for HUD under 
section 6(a) of Executive Order 12612, Federalism, has determined that 
the provisions in this notice does not affect the relationship between 
the Federal Government and the States and other public bodies or the 
distribution of power and responsibilities among various levels of 
government. Therefore, the policy is not subject to review under 
Executive Order 12612.

Executive Order 12606, The Family

    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has determined that this notice 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.

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) reviewed this notice 
under Executive Order 12866, Regulatory Planning and Review. OMB 
determined that this notice is a ``significant regulatory action,'' as 
defined in section 3(f) of the Order (although not economically 
significant, as provided in section 3(f)(1) of the Order). Any changes 
made to the final rule subsequent to its submission to OMB are 
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.

    Dated: December 30, 1996.
Susan M. Forward,
Deputy Assistant Secretary for Enforcement and Investigations.
    Dated: December 30, 1996.
Kevin E. Marchman,
Acting Assistant Secretary for Public and Indian Housing.
[FR Doc. 97-294 Filed 1-6-97; 8:45 am]
BILLING CODE 4210-28-P