[Federal Register Volume 76, Number 15 (Monday, January 24, 2011)]
[Proposed Rules]
[Pages 4194-4199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1346]
[[Page 4193]]
Vol. 76
Monday,
No. 15
January 24, 2011
Part IV
Department of Housing and Urban Development
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24 CFR Parts 5, 200, 203, et al.
Equal Access to Housing in HUD Programs--Regardless of Sexual
Orientation or Gender Identity; Proposed Rule
Federal Register / Vol. 76, No. 15 / Monday, January 24, 2011 /
Proposed Rules
[[Page 4194]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 200, 203, 236, 570, 574, and 982
[Docket No. FR 5359-P-01]
RIN 2501-AD49
Equal Access to Housing in HUD Programs--Regardless of Sexual
Orientation or Gender Identity
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
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SUMMARY: As the Nation's housing agency, HUD administers programs
designed to meet the goal of ensuring decent housing and suitable
living environment for all. In pursuit of this goal, it is HUD's
responsibility to ensure that all who are otherwise eligible to
participate in HUD's programs have equal access to these programs and
have the opportunity to compete fairly for HUD funds without being
subject to arbitrary exclusion.
There is evidence, however, that lesbian, gay, bisexual, and
transgender (LGBT) individuals and families are being arbitrarily
excluded from some housing opportunities in the private sector. Through
this proposed rule, HUD strives to ensure that its core programs are
open to all eligible individuals and families regardless of sexual
orientation or gender identity.
DATES: Comment Due Date: March 25, 2011.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street,
SW., Room 10276, Washington, DC 20410-0500. There are two methods for
submitting public comments. All submissions and other communications
must refer to the above docket number and title.
1. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
http://www.regulations.gov. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make them immediately
available to the public. Comments submitted electronically through the
http://www.regulations.gov Web site can be viewed by other commenters
and interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
2. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street, SW., Room 10276,
Washington, DC 20410-0500.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an appointment to review the public comments must be
scheduled in advance by calling the Regulations Division at 202-708-
3055 (this is not a toll-free number). Individuals with speech or
hearing impairments may access this number via TTY by calling the
Federal Information Relay Service at 800-877-8339. Copies of all
comments submitted are available for inspection and downloading at
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kenneth J. Carroll, Director, Fair
Housing Assistance Program Division, Office of Fair Housing and Equal
Opportunity, Department of Housing and Urban Development, 451 7th
Street, SW., Room 5206, Washington, DC 20410-8000; telephone number
202-708-2333 (this is not a toll-free number). Persons with hearing or
speech challenges may access this number through TTY by calling the
toll-free Federal Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
Like all Federal agencies, HUD is charged with ensuring equal
access to Federal programs that it administers. HUD also has a unique
charge, as the Nation's housing agency, to promote the Federal goal of
providing decent housing and a suitable living environment for all.\1\
Accordingly, HUD has a responsibility to ensure equal access to its
core rental assistance and homeownership programs for all eligible
individuals and families. HUD fulfills this responsibility by taking
such actions as necessary so that all who are otherwise eligible to
participate in HUD programs will not be excluded based on criteria that
are irrelevant to the purpose of HUD's programs, such as sexual
orientation or gender identity.
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\1\ This goal is rooted in section 2 of the Housing Act of 1949,
42 U.S.C. 1441.
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There is evidence suggesting that LGBT individuals and families do
not have equal access to housing. For example, a 2007 study of housing
discrimination based on sexual orientation conducted by Michigan fair
housing centers found disparate treatment in 32 out of 120 fair housing
tests it conducted. Testers posing as gay or lesbian home seekers
received unfavorable treatment on issues such as whether housing was
available, the amount of rent, application fees, and levels of
encouragement as compared to testers posing as heterosexual home
seekers. The gay and lesbian testers also were subjected to offensive
comments. See Michigan Fair Housing Center's Report on ``Sexual
Orientation and Housing Discrimination in Michigan'' January 2007 at
http://www.fhcmichigan.org/images/Arcus_web1.pdf.
A recent survey of more than 6,000 transgender persons conducted by
the National Center for Transgender Equality and the National Gay and
Lesbian Task Force (Task Force) indicated significant levels of housing
instability for transgender people. Twenty-six percent of respondents
reported having to find different places to sleep for short periods of
time due to bias. Eleven percent of respondents reported having been
evicted due to bias, and 19 percent reported becoming homeless due to
bias. See November 2009, ``Preliminary Findings, National Transgender
Discrimination Survey,'' at http://www.thetaskforce.org/reports_and_research/trans_survey_preliminary_findings.
In light of the increasing awareness of housing discrimination
against LGBT persons, a growing number of States, counties, and cities
are enacting laws that prohibit discrimination in housing on the basis
of sexual orientation or gender identity. Twenty States, the District
of Columbia, and over 200 localities have enacted such laws.\2\ The
legislative records of some of these enactments are a source of further
evidence of housing discrimination
[[Page 4195]]
based on sexual orientation or gender identity. For example, in a State
legislative hearing on a proposed amendment to the North Dakota fair
housing law that would add sexual orientation to the list of protected
characteristics, a woman recounted how she and her partner were evicted
once the landlord learned her partner was not a man. See ``Gay-rights
Advocates Press for Change in N.D. Law,'' February 4, 2009, Bismarck
Tribune, at http://www.bismarcktribune.com/news/state-and-regional/article_fb795f86-fc42-5184-b6d6-ad424e3243ce.html.
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\2\ See, e.g., Laws Prohibiting Discrimination Based on Sexual
Orientation and Gender Identity (Institute of Real Estate Management
(IREM) Legislative Staff July 2007, which is available at http://www.irem.org/pdfs/publicpolicy/Anti-discrimination.pdf); see also
http://www.hrc.org/issues/5499.htm.
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The U.S. Congress has acted to protect the rights of LGBT
individuals to be free from bias-motivated crime. In October 2009,
Federal legislation was enacted adding certain crimes motivated by a
victim's actual or perceived sexual orientation or gender identity to
the list of hate crimes covered by existing Federal law. See Matthew
Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Division E of
the National Defense Authorization Act for Fiscal Year 2010 (Pub. L.
111-84, approved October 28, 2009). In support of this enactment,
Congress found that violence motivated by the actual or perceived
sexual orientation or gender identity of the victim ``poses a serious
national problem'' because, among other things, it ``devastates not
just the actual victim and the family and friends of the victim, but
frequently savages the community sharing the traits that caused the
victim to be selected.'' (See Pub. L. 111-84, Division E, Sec. 4702(1),
(5).)
In considering the mounting evidence of violence and discrimination
against LGBT persons, the Department is concerned that its own programs
may not be fully open to LGBT individuals and families. Accordingly,
consistent with steps being taken at all levels of government to
protect LGBT persons from discrimination, HUD is initiating this
rulemaking in an effort to ensure that its rental housing and
homeownership programs remain open to all eligible persons regardless
of sexual orientation or gender identity.
II. This Proposed Rule
A. Defining Sexual Orientation and Gender Identity
The proposed rule would amend 24 CFR 5.100, which contains
definitions generally applicable to HUD programs, to include
definitions of ``sexual orientation'' and ``gender identity.'' Section
5.100 would define ``sexual orientation'' as ``homosexuality,
heterosexuality, or bisexuality.'' This is the definition that the
Office of Personnel Management (OPM) uses in the context of the Federal
workforce in its publication ``Addressing Sexual Orientation in Federal
Civilian Employment: A Guide to Employee Rights.'' (See http://www.opm.gov/er/address.pdf at page 4.) The rule would define ``gender
identity,'' consistent with the definition of ``gender identity'' in
the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act,
Public Law 111-84, Division E, Section 4707(c)(4) (18 U.S.C.
249(c)(4)), as ``actual or perceived gender-related characteristics.''
B. Prohibiting Inquiries Regarding Sexual Orientation or Gender
Identity
To further ensure equal access to HUD's housing and housing-related
service programs without regard to sexual orientation or gender
identity, HUD is proposing to prohibit inquiries regarding sexual
orientation or gender identity. This prohibition would preclude owners
and operators of HUD-assisted housing or housing whose financing is
insured by HUD from inquiring about the sexual orientation or gender
identity of an applicant for, or occupant of, the dwelling, whether
renter- or owner-occupied. While the rule prohibits inquiries regarding
sexual orientation or gender identity, nothing in the rule prohibits
any individual from voluntarily self-identifying his or her sexual
orientation or gender identity. Additionally, this rule is not intended
to prohibit otherwise lawful inquiries of an applicant or occupant's
sex where the housing provided or to be provided to the individual
involves the sharing of sleeping areas or bathrooms.
Through this rulemaking, HUD is proposing to institute this policy
in its rental assistance and homeownership programs, which include
HUD's Federal Housing Administration (FHA) mortgage insurance programs,
community development programs, and public and assisted housing
programs.\3\ This prohibition on inquiries regarding sexual orientation
or gender identity would be provided in a new paragraph (a)(2) added to
24 CFR 5.105. Section 5.105 of HUD's regulations is entitled ``Other
Federal Requirements.'' The proposed rule would divide the existing
paragraph (a) into two new subparagraphs. The text in the current
paragraph (a) would become subparagraph (a)(1), but retain the heading
and content as currently found in Sec. 5.105(a). A new subparagraph
(a)(2) would be added, entitled ``Prohibition on inquiries regarding
sexual orientation or gender identity.'' The regulations for the HUD
programs to which the prohibition on such inquiries apply already
include cross-reference to Sec. 5.105, and with the amendment to this
section, the cross-reference would now include the prohibition in Sec.
5.105(a).
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\3\ Institution of this policy in HUD's Native American programs
will be undertaken by separate rulemaking.
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This policy prohibiting inquiries regarding sexual orientation or
gender identity is undertaken pursuant to HUD's general rulemaking
authority granted by section 7(d) of the Department of Housing and
Urban Development Act (42 U.S.C. 3535(d)) and HUD's specific rulemaking
authority to establish eligibility criteria for participation in HUD
programs granted by the statutes that establish the various HUD
programs.
C. Prohibiting Sexual Orientation and Gender Identity as Grounds for
Decisionmaking in Federal Housing Administration (FHA) Programs
Section 203.33(b) of HUD's FHA regulations (24 CFR 203.33(b))
provides that a mortgagee's determination of the adequacy of a single-
family mortgagor's income ``shall be made in a uniform manner without
regard to'' specified prohibited grounds. The proposed rule would add
actual or perceived sexual orientation and gender identity to the
prohibited grounds enumerated in 24 CFR 203.33(b) to ensure FHA-insured
lenders do not deny or otherwise alter the terms of mortgages on the
basis of criteria that are irrelevant to the purpose of obtaining FHA-
mortgage insurance.
D. Eligible Families in HUD Programs
For the following HUD regulations specified below, this proposed
rule clarifies that all otherwise eligible families, regardless of
marital status, sexual orientation, or gender identity, have the
opportunity to participate in HUD programs. The majority of HUD's
rental housing and homeownership programs already interpret ``family''
broadly. Family includes a single person and families with or without
children, just to cite two examples. This proposed rule clarifies that
families who are otherwise eligible for HUD programs may not be
excluded because one or more members of the family may be an LGBT
individual or have an LGBT relationship or be perceived to be such an
individual or in such relationship.
This section lists the HUD programs for which this proposed rule
clarifies and confirms the broad meaning of family.
1. Section 8 Tenant-Based Assistance (Housing Choice Voucher
Program) and Public Housing Programs (24 CFR part 5 and 24 CFR part
982). The proposed rule would amend the regulations in 24
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CFR 5.403, which contains the definitions applicable to HUD's Housing
Choice Voucher (HCV) and public housing programs. The term ``family,''
provided in part 5 for these HUD programs, is based on section 3 of the
U.S. Housing Act of 1937 (42 U.S. 1437a) (1937 Act). Section 3(b)(3)(B)
of the 1937 Act provides as follows:
Families.--The term ``families'' includes families with children
and, in the cases of elderly families, near-elderly families, and
disabled families, means families whose heads (or their spouses), or
whose sole members, are elderly, near-elderly, or persons with
disabilities, respectively. The term includes, in the cases of
elderly families, near-elderly families, and disabled families, 2 or
more elderly persons, near-elderly persons, or persons with
disabilities living together, and 1 or more such persons living with
1 or more persons determined under the public housing agency plan to
be essential to their care or well-being.
Section 3(b)(3)(A) of the 1937 Act provides that the term ``single
person'' includes a family that consists of a single person. (See
Section 3(b)(3)(C) of the 1937 Act.) Section 3(b)(3)(C) provides that
the temporary absence of a child from a home due to placement in foster
care shall not be considered in determining family composition and
family size, meaning that a child, although absent from the home, is
still considered a family member. Sections 3(b)(3)(D), (E), (F), and
(G) also specify the meaning of the following terms: elderly person,
person with disabilities, displaced person, and near-elderly person.
All of these statutory terms are currently captured in the term
``family'' in Sec. 5.403.
These statutory terms result in an expansive view of what can
constitute a family, and the 1937 Act provides examples of what the
term ``families'' includes but does not limit the composition of
families to the statutory examples. Consistent with the broad meaning
given to the term family by the 1937 Act, this proposed rule, clarifies
that a family, however composed, is a family regardless of marital
status, sexual orientation, or gender. The term ``family'' in Sec.
5.403 is similar in substance to the term ``family composition'' in
Sec. 982.201, but HUD finds that the statutory terms are more
coherently reflected in Sec. 982.201. Therefore, in addressing the
term ``family'' in Sec. 5.403, HUD has structured the organization of
this term as found in Sec. 982.201.
This proposed rule also would amend the terms ``disabled family,''
``elderly family,'' and ``near-elderly family'' in Sec. 5.403. Each of
these terms is stated as a family whose head, spouse, or sole member
is, respectively, for each of these terms, a person with disabilities,
a person at least 62 years of age, or a person who is at least 50 years
of age but below the age of 62. To each of these terms, the proposed
rule adds the term ``co-head.''
``Co-head'' is a term that has long been used in supplementary
documents to HUD's rental assistance programs. Form HUD-50058
pertaining to the Multifamily Tenant Characteristics System (MTCS) and
its accompanying Instruction Booklet use the term ``co-head'' and
provides that ``co-head'' is an individual in the household who is
equally responsible for the lease with the head of household. HUD's Web
page devoted to frequently asked questions about general income and
rent determination for HUD's rental housing programs provides in the
answer to question 38 an example of co-head as follows: ``An example of
this [co-head] would be an unmarried couple or two persons living
together and listed as head and co-head on the lease agreement.'' (See
http://www.hud.gov/offices/pih/programs/ph/rhiip/faq_gird.cfm).
The inclusion in the proposed amendment to Sec. 5.403 of ``co-
head,'' again a familiar term to housing providers of HUD assistance,
would not change the meaning of the statutory term ``heads'' of
household, which is not currently defined in statute or regulation. The
inclusion would merely codify HUD's existing interpretation of
``heads,'' which, as noted above, recognizes that some families living
in HUD-assisted rental housing have more than one family head. Nor
would including the term ``co-head'' in ``disabled family,'' ``elderly
family,'' and ``near-elderly family'' alter or expand the meaning of
``spouse.'' Consistent with longstanding HUD interpretation, a head and
co-head of the family may be a married couple, an unmarried couple, or
two adults living together who are listed as head and co-head on the
lease agreement.
The proposed rule would add ``family,'' as provided in 24 CFR
5.403, to the list of general definitions in Sec. 5.100, and clarify
that the term is applicable to all HUD programs unless otherwise
provided in the regulations for a specific HUD program.
The proposed rule also would add to 24 CFR 982.4 and Sec. 982.201
a cross-reference to the term ``family'' in 24 CFR 5.403.
2. Federal Housing Administration (FHA) Programs (24 CFR Parts 200,
203, 236, and 291). Basic definitions that are generally applicable to
all FHA multifamily programs are found in 24 CFR 200.3. This regulatory
section would be amended to cross-reference to ``family'' in 24 CFR
5.403.
In addition to the proposed amendment to 24 CFR 200.3, HUD proposes
to amend 24 CFR 236.1. Section 236.1(a) contains the savings clause of
applicable regulations for the mortgages insured under the Rental and
Cooperative Housing for Lower Income Families Program, for which new
mortgages have not been insured since 1983. Although no new mortgages
are insured under this program, authority remains to refinance
mortgages insured under section 236 of the National Housing Act (NHA)
or to finance, pursuant to section 236(j)(3) of the NHA, the purchase
by a cooperative or nonprofit corporation or association of a project
assisted under section 236. The proposed amendment would provide that
the term ``family'' in 24 CFR 200.3(a) applies to any refinancing of a
mortgage insured under section 236 of the NHA, or to financing,
pursuant to section 236(j)(3) of the NHA, of the purchase, by a
cooperative or nonprofit corporation or association, of a project
assisted under section 236.
3. Community Development Block Grants (CDBG) Programs (24 CFR Part
570). Section 570.3 of the CDBG regulations (24 CFR part 570, subpart
A) provides basic definitions that are applicable to all CDBG programs.
The proposed rule would amend 24 CFR 570.3 to cross-reference to the
term ``family'' in 24 CFR 5.403. The proposed rule would revise the
term ``household'' in Sec. 570.3, another term used in CDBG programs,
to ensure there is no exclusion of an eligible household on the basis
of sexual orientation or gender identity. The revisions to
``household'' would also remove some redundancy in terminology. The
current term ``household'' provides that occupants of a household may
be a single family or one person living alone, but the term ``family,''
as discussed earlier in this preamble, includes a single person.
Accordingly, the revisions to ``household'' are designed to eliminate
any conflict between the terms ``household'' and ``family.''
4. Housing Opportunities for Persons With AIDS (HOPWA) (24 CFR Part
574). The proposed rule would amend 24 CFR 574.3 to cross-reference to
``family'' in 24 CFR 5.403, and to remove obsolete language that states
that for a person to be eligible to live with another person, the other
person must be determined to be important to the person's care or well-
being.
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E. HUD Programs for Which Eligible Family Does Not Require Amendment
The proposed rule does not revise the term ``family'' in the
regulations for the Home Investment Partnership Program, which are
codified at 24 CFR part 92. ``Family'' in Sec. 92.2 already cross-
references to the term family in Sec. 5.403. The proposed rule would
not amend the part 891 definitions of ``household'' (Sec. 891.105),
``elderly person'' (Sec. 891.205), or ``disabled household'' (Sec.
891.305) governing programs that provide Supportive Housing for the
Elderly and Persons with Disabilities. These programs already provide
meanings for the term family.
Additionally, the rule does not propose to amend the term
``family'' in the Project-Based Voucher (PBV) Program regulations,
codified at 24 CFR part 983. The PBV regulations, in Sec. 983.4,
already cross-reference to the definitions in 24 CFR part 5, subpart D,
which includes the Sec. 5.403.
F. Changes to HUD Forms
This rule, as proposed, does not impose any new information
collection requirements on participants in the covered HUD programs.
Rather than requiring collection of information, the rule prohibits
inquiries regarding sexual orientation or gender identity of any
individual or family receiving housing assistance or benefitting from
mortgage insurance under the covered HUD programs. At the final rule
stage, if HUD identifies any forms for which the regulatory citation to
the term ``family'' must be included as a result of promulgation of
this rule, HUD will work with the Office of Management and Budget (OMB)
to include such term. As noted earlier in this preamble, such inquiry
is irrelevant to an individual's or family's eligibility to participate
in a HUD-covered program.
III. Solicitation of Comments
The Department welcomes comment on the amendments proposed in this
rule, including identification of any program area which may have been
inadvertently overlooked and should reference ``family'' in 24 CFR
5.403. The Department also welcomes any information regarding exclusion
or discrimination on the basis of sexual orientation or gender identity
in HUD programs. Such information will help the Department in its
effort to craft regulations that will effectively ensure access to HUD
programs by all eligible persons regardless of sexual orientation or
gender identity.
IV. Findings and Certifications
Executive Order 12866, Regulatory Planning and Review
OMB reviewed this proposed rule under Executive Order 12866
(entitled ``Regulatory Planning and Review''). A determination was made
that this proposed rule 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). The docket
file is available for public inspection in the Regulations Division,
Office of General Counsel, Department of Housing and Urban Development,
451 7th Street, SW., Room 10276, Washington, DC 20410-0500. Due to
security measures at the HUD Headquarters building, please schedule an
appointment to review the docket file by calling the Regulations
Division at 202-402-3055 (this is not a toll-free number). Individuals
with speech or hearing impairments may access this number via TTY by
calling the Federal Information Relay Service at 800-877-8339.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This proposed rule would not impose any new costs, or modify existing
costs, applicable to HUD grantees. Rather, the purpose of the proposed
rule is to ensure open access to HUD's core programs, regardless of
sexual orientation or gender identity. In this rule, HUD affirms the
broad meaning of ``family'' that is already provided for in HUD
programs by statute. The only clarification that HUD makes is that a
family is a family as currently provided in statute and regulation,
regardless of marital status, sexual orientation, or gender identity.
Accordingly, the undersigned certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
Notwithstanding HUD's determination that this rule will not have a
significant effect on a substantial number of small entities, HUD
specifically invites comments regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in the preamble to this rule.
Environmental Impact
This proposed rule sets forth nondiscrimination standards.
Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically
excluded from environmental review under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either: (i) Imposes substantial direct compliance costs on State and
local governments and is not required by statute, or (ii) preempts
State law, unless the agency meets the consultation and funding
requirements of section 6 of the Executive Order. This proposed rule
would not have federalism implications and would not impose substantial
direct compliance costs on State and local governments or preempt State
law within the meaning of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, and
Tribal governments, and on the private sector. This proposed rule would
not impose any Federal mandates on any State, local, or Tribal
governments, or on the private sector, within the meaning of the UMRA.
List of Subjects
24 CFR Part 5
Administrative practice and procedure, Aged, Claims, Drug abuse,
Drug traffic control, Grant programs-- housing and community
development, Grant programs--Indians, Individuals with disabilities,
Loan programs-- housing and community development, Low and moderate
income housing, Mortgage insurance, Pets, Public housing, Rent
subsidies, Reporting and recordkeeping requirements.
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards, Lead
poisoning, Loan programs--housing and community development, Mortgage
insurance, Organization and functions (Government agencies), Penalties,
Reporting and recordkeeping.
[[Page 4198]]
24 CFR Part 203
Hawaiian Natives, Home improvement, Indians--lands, Loan programs--
housing and community development, Mortgage insurance, Reporting and
recordkeeping requirements, Solar energy.
24 CFR Part 236
Grant programs--housing and community development, Low- and
moderate-income housing, Mortgage insurance, Rent subsidies, Reporting
and recordkeeping requirements.
24 CFR Part 570
Administrative practice and procedure, American Samoa, Community
development block grants, Grant programs--education, Grant programs--
housing and community development, Guam, Indians, Loan programs--
housing and community development, Low and moderate income housing,
Northern Mariana Islands, Pacific Islands Trust Territory, Puerto Rico,
Reporting and recordkeeping requirements, Student aid, Virgin Islands.
24 CFR Part 574
Community facilities, Grant programs--health programs, Grant
programs--housing and community development, Grant programs--social
programs, HIV/AIDS, Low and moderate income housing, Reporting and
recordkeeping requirements.
24 CFR Part 982
Grant programs--housing and community development, Grant programs--
Indians, Indians, Public housing, Rent subsidies, Reporting and
recordkeeping requirements.
Accordingly, for the reasons stated above, HUD proposes to amend 24
CFR parts 5, 200, 203, 236, 570, 574, and 982 as follows:
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
1. The authority citation for 24 CFR part 5 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), unless otherwise noted.
2. The heading of subpart A is revised to read as follows:
Subpart A--Generally Applicable Definitions and Requirements;
Waivers
3. In Sec. 5.100, definitions for ``family,'' ``gender identity,''
and ``sexual orientation'' are added to read as follows:
Sec. 5.100 Definitions.
* * * * *
Family has the meaning provided this term in Sec. 5.403, and
applies to all HUD programs unless otherwise provided in the
regulations for a specific HUD program.
* * * * *
Gender identity means actual or perceived gender-related
characteristics.
* * * * *
Sexual orientation means homosexuality, heterosexuality, or
bisexuality.
* * * * *
4. In Sec. 5.105, the introductory text is revised, paragraph (a)
is redesignated as paragraph (a)(1), and a new paragraph (a)(2) is
added to read as follows:
Sec. 5.105 Other Federal requirements.
The requirements set forth in this section apply to all HUD
programs, except as may be otherwise noted in the respective program
regulations in title 24 of the CFR, or unless inconsistent with
statutes authorizing certain HUD programs:
(a)(1) Nondiscrimination and equal opportunity. * * *
(2) Prohibition on inquiries regarding sexual orientation or gender
identity. No owner or administrator of HUD-assisted or HUD-insured
housing, approved lender in an FHA mortgage insurance program, nor any
(or any other) recipient or subrecipient of HUD funds may inquire about
the sexual orientation, or gender identity of an applicant for, or
occupant of, a HUD-assisted dwelling or a dwelling whose financing is
insured by HUD, whether renter- or owner-occupied. This prohibition on
inquiries regarding sexual orientation or gender identity does not
prohibit any individual from voluntarily self-identifying his or her
sexual orientation or gender identity. This prohibition on inquiries
regarding sexual orientation or gender identity does not prohibit
lawful inquiries of an applicant or occupant's sex where the housing
provided or to be provided to the individual involves the sharing of
sleeping areas or bathrooms.
* * * * *
Subpart D--Definitions for Section 8 and Public Housing Assistance
Under the United States Housing Act of 1937
5. In Sec. 5.403, the definitions of ``Disabled family,''
``Elderly family,'' ``family,'' and ``Near-elderly family'' are revised
to read as follows:
Sec. 5.403 Definitions.
* * * * *
Disabled family means a family whose head (including co-head),
spouse, or sole member is a person with a disability. It may include
two or more persons with disabilities living together, or one or more
persons with disabilities living with one or more live-in aides.
* * * * *
Elderly family means a family whose head (including co-head),
spouse, or sole member is a person who is at least 62 years of age. It
may include two or more persons who are at least 62 years of age living
together, or one or more persons who are at least 62 years of age
living with one or more live-in aides.
Family includes but is not limited to, regardless of marital
status, actual or perceived sexual orientation, or gender identity, the
following:
(1) A single person, who may be an elderly person, displaced
person, disabled person, near-elderly person, or any other single
person; or
(2) A group of persons residing together, and such group includes,
but is not limited to:
(i) A family with or without children (a child who is temporarily
away from the home because of placement in foster care is considered a
member of the family);
(ii) An elderly family;
(iii) A near-elderly family;
(iv) A disabled family;
(v) A displaced family; and
(vi) The remaining member of a tenant family.
* * * * *
Near-elderly family means a family whose head (including co-head),
spouse, or sole member is a person who is at least 50 years of age but
below the age of 62; or two or more persons, who are at least 50 years
of age but below the age of 62, living together; or one or more persons
who are at least 50 years of age but below the age of 62, living with
one or more live-in aides.
* * * * *
PART 200--INTRODUCTION TO FHA PROGRAMS
6. The authority citation for 24 CFR part 200 continues to read as
follows:
Authority: 12 U.S.C. 1702-1715z-21; 42 U.S.C. 3535(d).
7. Section 200.3(a) is revised to read as follows:
Sec. 200.3 Definitions.
(a) The definitions ``Department,'' ``Elderly person,'' ``Family,''
``HUD,'' and ``Secretary,'' as used in this subpart A, shall have the
meanings given these definitions in 24 CFR part 5.
* * * * *
8. Section 200.300 is revised to read as follows:
[[Page 4199]]
Sec. 200.300 Nondiscrimination and fair housing policy.
Federal Housing Administration programs shall be administered in
accordance with:
(a) The nondiscrimination and fair housing requirements set forth
in 24 CFR part 5, including the prohibition on inquiries regarding
sexual orientation or gender identity set forth in 24 CFR 5.105(a)(2);
and
(b) The affirmative fair housing marketing requirements in 24 CFR
part 200, subpart M and 24 CFR part 108.
PART 203--SINGLE FAMILY MORTGAGE INSURANCE
9. The authority citation for 24 CFR part 203 continues to read as
follows:
Authority: 12 U.S.C. 1709, 1710, 1715b, 1715z-16, and 1715u; 42
U.S.C. 3535(d).
10. In Sec. 203.33, paragraph (b) is revised to read as follows:
Sec. 203.33 Relationship of income to mortgage payments.
* * * * *
(b) Determinations of adequacy of mortgagor income under this
section shall be made in a uniform manner without regard to race,
color, religion, sex, national origin, familial status, handicap,
marital status, actual or perceived sexual orientation, gender
identity, source of income of the mortgagor, or location of the
property.
PART 236--MORTGAGE INSURANCE AND INTEREST REDUCTION PAYMENT FOR
RENTAL PROJECTS
11. The authority citation for 24 CFR part 236 continues to read as
follows:
Authority: 12 U.S.C. 1715b and 1715z-1; 42 U.S.C. 3535(d).
12. Section 236.1 is amended to add a sentence at the end of
paragraph (a) to read as follows:
Sec. 236.1 Applicability, cross-reference, and savings clause.
(a) Applicability. * * * The definition of family in 24 CFR
200.3(a) applies to any refinancing of a mortgage insured under section
236, or to financing pursuant to section 236(j)(3) of the purchase, by
a cooperative or nonprofit corporation or association of a project
assisted under section 236.
* * * * *
PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS
13. The authority citation for 24 CFR part 570 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), and 5301-5320.
Subpart A--General Provisions
14. In Sec. 570.3, the definitions of ``family'' and ``household''
are revised to read as follows:
Sec. 570.3 Definitions.
* * * * *
Family refers to the definition of ``family'' set out in 24 CFR
5.403.
Household means all persons occupying a housing unit. The occupants
may be a family, as defined in 24 CFR 5.403, two or more families
living together, or any other group of related or unrelated persons who
share living arrangements, regardless of marital status, actual or
perceived sexual orientation, or gender identity.
* * * * *
PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS
15. The authority citation for 24 CFR part 574 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12901-12912.
16. In Sec. 574.3, the definition of ``family'' is revised to read
as follows:
Sec. 574.3 Definitions.
* * * * *
Family is defined as set forth in 24 CFR 5.403 and includes one or
more eligible persons living with another person or persons, regardless
of marital status, or actual or perceived sexual orientation or gender
identity, and the surviving member or members of any family described
in this definition who were living in a unit assisted under the HOPWA
program with the person with AIDS at the time of his or her death.
* * * * *
PART 982--SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER
PROGRAM
17. The authority citation for 24 CFR part 982 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
18. In Sec. 982.4, paragraphs (a)(1) is revised, paragraph (a)(2)
is removed, paragraph (a)(3) is redesignated as new paragraph (a)(2),
and the definition of ``family'' in paragraph (b) is revised to read as
follows:
Sec. 982.4 Definitions.
(a) Definitions found elsewhere. (1) General definitions. The
following terms are defined in part 5, subpart A of this title: 1937
Act, covered person, drug, drug-related criminal activity, Federally
assisted housing, guest, household, HUD, MSA, other person under the
tenant's control, public housing, Section 8, and violent criminal
activity.
* * * * *
(b) * * *
Family. A person or group of persons, as determined by the PHA
consistent with 24 CFR 5.403, approved to reside in a unit with
assistance under the program. See discussion of family composition at
Sec. 982.201(c).
* * * * *
19. In Sec. 982.201, paragraph (c) is revised to read as follows:
Sec. 982.201 Eligibility and targeting.
* * * * *
(c) Family composition. See definition of ``family'' in 24 CFR
5.403.
* * * * *
Dated: December 1, 2010.
Shaun Donovan,
Secretary.
[FR Doc. 2011-1346 Filed 1-21-11; 8:45 am]
BILLING CODE 4210-67-P