[Federal Register Volume 81, Number 89 (Monday, May 9, 2016)]
[Proposed Rules]
[Pages 28037-28040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10753]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 1000, 1003, 1005, 1006, and 1007

[Docket No. FR 5861-P-01]
RIN 2577-AC96


Equal Access to Housing in HUD's Native American and Native 
Hawaiian Programs--Regardless of Sexual Orientation or Gender Identity

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise regulations for HUD's Native 
American and Native Hawaiian programs to incorporate existing rules 
that require HUD programs to be open to all eligible individuals and 
families regardless of sexual orientation, gender identity, or marital 
status. Since HUD promulgated the ``Equal Access to Housing in HUD 
Programs Regardless of Sexual Orientation or Gender Identity'' final 
rule in February, 2012, HUD has required that HUD-assisted and HUD-
insured housing be made available in accordance with program 
eligibility requirements and without regard to sexual orientation, 
gender identity, or marital status, and has generally prohibited 
inquiries into sexual orientation or gender identity. In applying these 
non-discrimination requirements to HUD's Native American and Native 
Hawaiian programs, this proposed rule would further the Federal goal of 
providing decent housing and a suitable living environment for all.

DATES: Comments due: July 8, 2016.

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. Communications must refer 
to the above docket number and title. There are two methods for 
submitting public comments. All submissions must refer to the above 
docket number and title.
    1. 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.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
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 
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.

    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 advance appointment to review the public comments must be 
scheduled 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 Relay Service, 
toll free, at 800-877-8339. Copies of all comments submitted are 
available for inspection and downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: [Contact Name to be Inserted], Office 
of Native American Programs, Office of Public and Indian Housing, 
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 impairments may 
access this number through TTY by calling the toll-free Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 3, 2012, HUD published in the Federal Register, at 77 
FR 5662, a final rule titled ``Equal Access to Housing in HUD Programs 
Regardless of Sexual Orientation or Gender Identity'' (the Equal Access 
Rule) in order to address evidence that lesbian, gay, bisexual, and 
transgender (LGBT) individuals and families do not have equal access to 
housing, and to promote the federal goal of providing decent housing 
and a suitable living environment for all.\1\ The Equal Access Rule 
requires that housing assisted or insured by HUD be made available to 
individuals and families without regard to actual or perceived sexual 
orientation, gender identity, or marital status. Additionally, the rule 
prohibits owners and administrators of HUD-assisted or HUD-insured 
housing, approved lenders in an FHA mortgage

[[Page 28038]]

insurance program, and any other recipients or subrecipients of HUD 
funds from inquiring about sexual orientation or gender identity to 
determine eligibility for HUD-assisted or HUD-insured housing. The 
prohibition on inquiries regarding sexual orientation or gender 
identity does not prohibit individuals from voluntarily self-
identifying sexual orientation or gender identity, and it provides a 
limited exception for lawful inquiries of an applicant's or occupant's 
sex where the housing provided or to be provided is temporary, 
emergency shelter with shared sleeping areas or bathrooms, or to 
determine the number of bedrooms to which a household may be entitled 
These protections are now codified at 24 CFR 5.105(a)(2). The Equal 
Access Rule also provides definitions for the terms sexual orientation 
and gender identity, and revises the definition for the term family at 
Sec.  5.403, which applies broadly unless otherwise provided in the 
regulations for a specific HUD program. In addition, the Equal Access 
Rule made revisions to specific HUD programs. See 24 CFR part 200--
Introduction to FHA Programs, revisions to sections defining family, 
determining income adequacy, and applying the definition of family; 24 
CFR part 570--Community Development Block Grants, revisions to the 
section defining family and household; 24 CFR part 574--Housing 
Opportunities for Persons with AIDS, revision to the section defining 
family; 24 CFR part 891--Supportive Housing For the Elderly and Persons 
with Disabilities, revision to the definition of family; and 24 CFR 
part 892--Section 8 Tenant-Based Assistance: Housing Choice Voucher 
Program, revisions to the sections defining family, eligibility, and 
targeting.
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    \1\ See Section 2 of the Housing Act of 1949 at 42 U.S.C. 1441 
(Congressional Declaration of National Housing Policy).
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    In publishing the Equal Access Rule, HUD noted that establishment 
of the equal access policy in HUD's Native American programs would be 
undertaken by separate rulemaking. (See 77 FR 5662, at footnote 3.) 
Since implementing the Equal Access Rule, it has been HUD's intention 
to apply the same non-discrimination requirements to HUD's Native 
American and Native Hawaiian programs, after undergoing tribal 
consultation to solicit feedback on this proposal.
    Since the publication of the Equal Access Rule, the Federal 
Government has continued to broaden protections for LGBT individuals 
and families where Federal funding is involved. For example, the 
Violence Against Women Reauthorization Act of 2013 (VAWA) includes a 
provision that prohibits discrimination based on gender identity and 
sexual orientation by recipients of VAWA funds or assistance 
administered by the U.S. Department of Justice's Office on Violence 
Against Women. Additionally, on July 21, 2014, President Obama signed 
Executive Order 13672, titled, ``Further Amendments to Executive Order 
11478, Equal Employment Opportunity in the Federal Government, and 
Executive Order 11246, Equal Employment Opportunity,'' which prohibits 
the Federal Government and Federal contractors from discriminating on 
the basis of sexual orientation or gender identity.\2\
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    \2\ See http://www.gpo.gov/fdsys/pkg/FR-2014-07-23/pdf/2014-17522.pdf.
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    As discussed in the preamble to the January 24, 2011, proposed 
Equal Access Rule, at 76 FR 4194, and in the preamble to the final 
Equal Access Rule, the Federal government has a goal of providing 
everyone in the United States with a decent and suitable place to live. 
In furtherance of this, HUD has a responsibility to ensure that all who 
are otherwise eligible to participate in HUD programs will not be 
excluded based on sexual orientation, gender identity, or marital 
status, which are irrelevant to eligibility for or participation in 
those programs. By applying the core protections of the Equal Access 
Rule to HUD's Native American and Native Hawaiian programs, HUD will 
conform with its own precedent of equal access, as well as other 
Federal precedent, to ensure that Federal funds are not used to exclude 
persons from Federally-assisted programs because of sexual orientation, 
gender identity, or marital status. Applying the Equal Access Rule to 
HUD's Native American and Native Hawaiian programs will also ensure 
consistency where there is an overlap between HUD's Native American and 
Native Hawaiian programs and other HUD programs, which are already 
subject to the requirements in the Equal Access Rule.

II. This Proposed Rule

    With tribal consultation completed, as explained below in Section 
III, HUD is proposing to amend regulations for its Native American and 
Native Hawaiian programs so that they conform to the Equal Access Rule. 
The regulations would require that access be provided without regard to 
actual or perceived sexual orientation, gender identity, or marital 
status in housing assisted or insured under these programs. The 
proposed rule would add the equal access to HUD-assisted or insured 
housing requirements in 24 CFR 5.105(a)(2) to the Native American and 
Native Hawaiian programs identified below. HUD's rule at 24 CFR 
5.105(a)(2) incorporates the definitions of ``sexual orientation'' and 
``gender identity'' provided in Sec.  5.100, and these definitions will 
apply to the Native American and Native Hawaiian programs. This 
proposed rule would not change the definition of ``family'' for Native 
American and Native Hawaiian programs. At the final rule stage, HUD 
intends to make conforming amendments to Sec.  5.105(a)(2) to make 
explicit that the requirements in Sec.  5.105(a)(2) apply to housing 
with loans guaranteed or insured under one of HUD's Native American or 
Native Hawaiian housing programs and not only the FHA mortgage 
insurance program.
    Specifically, this proposed rule would amend HUD's regulations for 
Native American Housing Activities, at 24 CFR part 1000; Community 
Development Block Grants for Indian Tribes and Alaska Native Villages, 
at 24 CFR part 1003; the Section 184 Indian Home Loan Guarantee 
Program, at 24 CFR part 1005; the Native Hawaiian Housing Block Grant 
Program, at 24 CFR part 1006; and Section 184A Loan Guarantees For 
Native Hawaiian Housing, at 24 CFR part 1007 to incorporate the Sec.  
5.105(a)(2) requirements.
    On November 20, 2015, HUD published in the Federal Register, at 80 
FR 72642, a proposed rule titled ``Equal Access in Accordance with an 
Individual's Gender Identity in Community Planning and Development 
Programs'' (the CPD Equal Access Rule), which would amend certain 
provisions of Sec.  5.105(a)(2). While the CPD Equal Access Rule would 
not amend the Equal Access Rule's requirement that access be provided 
without regard to actual or perceived sexual orientation, gender 
identity, or marital status in HUD-assisted or HUD-insured housing, the 
CPD Equal Access Rule is proposing changes to 24 CFR 5.105(a)(2) and to 
the definition of ``gender identity'' in 24 CFR 5.100, which this rule 
is seeking to adopt for Native American and Native Hawaiian programs. 
If the CPD Equal Access Rule and this rule both become final, the 
changes proposed in the CPD Equal Access Rule would apply to the Native 
American and Native Hawaiian programs.
    Specifically, the proposed rule seeks to remove the prohibition of 
inquiries at Sec.  5.105(a)(2)(ii), which HUD believes may hinder a 
provider from making an appropriate placement decision with regard to 
transgender individuals and other persons who do not identify with the 
sex they were assigned at birth. For this reason, the CPD Equal Access 
Rule

[[Page 28039]]

proposes to remove the prohibition of inquiries. It is not HUD's 
intent, however, to now permit recipients or subrecipients to ask 
questions in order to seek information that could be used for 
discriminatory purposes. The CPD Equal Access Rule is also proposing to 
amend the definition of gender identity in Sec.  5.100, which currently 
provides that ``Gender identity means actual or perceived gender-
related characteristics.'' The new definition would more clearly 
reflect the difference between actual and perceived gender identity. 
The definition of gender identity would now read as follows: ``Gender 
identity means the gender with which a person identifies, regardless of 
the sex assigned to that person at birth. Perceived gender identity 
means the gender with which a person is perceived to identify based on 
that person's appearance, behavior, expression, other gender-related 
characteristics, or sex assigned to the individual at birth.''

III. Tribal Consultation

    HUD's policy is to consult with Indian tribes early in the 
rulemaking process on matters that have tribal implications. 
Accordingly, on January 28, 2015, HUD sent letters to Tribal leaders 
informing them of the nature of the forthcoming rule and soliciting 
comments. The deadline for comments under this informal consultation 
was February 27, 2015. HUD received one response to the consultation 
letter from a tribally designated housing entity, which said it opposed 
the proposed rule.
    HUD received a second response on behalf of a housing development 
and management organization that states that section 106(b)(2)(A) of 
the Native American Housing Assistance and Self-Determination Act of 
1996 (NAHASDA) (25 U.S.C. 4166(b)(2)(A)) requires HUD to use negotiated 
rulemaking in order to amend NAHASDA regulations.. The letter also 
stated that the rule should not prohibit tribes from considering 
marital status in making eligibility determinations for housing 
assisted or insured by HUD because tribes have authority to govern 
domestic relations of their members. This letter also asked for more 
specificity on the rule and more ways to participate in the 
consultation process. The requirement to undertake negotiated 
rulemaking pertains to regulations that implement NAHASDA statutory 
requirements. This rule pertains to nondiscrimination requirements and 
does not pertain to regulations that implement NAHASDA statutory 
requirements.
    The entities that submitted comments in response to the 
consultation letter, and all other tribes and interested parties now 
have the opportunity to provide further comments on this proposed rule, 
and HUD welcomes such comments.

IV. Findings and Certifications

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 does not impose any new costs, or modify existing 
costs, applicable to HUD grantees. Rather, the purpose of this proposed 
rule is to ensure equal access to HUD's Native American and Native 
Hawaiian programs, regardless of 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.

Environmental Impact

    This proposed rule sets forth nondiscrimination standards. 
Accordingly, under 24 CFR 50.19(c)(3), this proposed 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 1000

    Aged, Community development block grants, Grant programs--housing 
and community development, Grant programs--Indians, Indians, 
Individuals with disabilities, Public housing, Reporting and 
recordkeeping requirements.

24 CFR Part 1003

    Alaska, Community development block grants, Grant programs--housing 
and community development, Grant programs--Indians, Indians, Reporting 
and recordkeeping requirements.

24 CFR Part 1005

    Indians, Loan programs--Indians, Reporting and recordkeeping 
requirements.

24 CFR Part 1006

    Community development block grants, Grant programs--housing and 
community development, Grant programs--Indians, Hawaiian Natives, Low 
and moderate income housing, Reporting and recordkeeping requirements.

24 CFR Part 1007

    Hawaiian Natives, Loan programs--housing and community development, 
Loan programs--Indians, Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, HUD proposes 
to amend 24 CFR parts 1000, 1003, 1005, 1006, and 1007, as follows:

PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES

0
1. The authority citation for 24 CFR part 1000 continues to read as 
follows:

    Authority:  25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).

0
2. In Sec.  1000.12, add paragraph (e) to read as follows:


Sec.  1000.12  What nondiscrimination requirements are applicable?

* * * * *
    (e) The equal access to HUD-assisted or insured housing 
requirements in 24 CFR 5.105(a)(2).

PART 1003--COMMUNITY DEVELOPMENT BLOCK GRANTS FOR INDIAN TRIBES AND 
ALASKA NATIVE VILLAGES

0
3. The authority citation for 24 CFR part 1003 continues to read as 
follows:


[[Page 28040]]


    Authority:  42 U.S.C. 3535(d) and 5301 et seq.
0
4. In Sec.  1003.601, add paragraph (c) to read as follows:


Sec.  1003.601  Nondiscrimination.

* * * * *
    (c) A grantee shall comply with the equal access to HUD-assisted or 
insured housing requirements in 24 CFR 5.105(a)(2).

PART 1005--LOAN GUARANTEES FOR INDIAN HOUSING

0
5. The authority citation for 24 CFR part 1005 continues to read as 
follows:

    Authority:  12 U.S.C. 1715z-13a; 15 U.S.C. 1639c; 42 U.S.C. 
3535(d).

0
6. Add Sec.  1005.115 to read as follows:


Sec.  1005.115  Equal Access.

    The equal access to HUD-assisted or insured housing requirements in 
24 CFR 5.105(a)(2) apply to this part.

PART 1006--NATIVE HAWAIIAN HOUSING BLOCK GRANT PROGRAM

0
7. The authority citation for 24 CFR part 1006 continues to read as 
follows:

    Authority:  25 U.S.C. 4221 et seq.; 42 U.S.C. 3535(d).

0
8. Amend Sec.  1006.355 to read as follows:
0
a. The undesignated paragraph is revised and designated as paragraph 
(a);
0
b. Redesignate paragraphs (a), (b), and (c) as paragraphs (a)(1), 
(a)(2), and (a)(3);
0
c. Redesignate paragraphs (c)(1) and (c)(2) as paragraphs (a)(3)(i) and 
(a)(3)(ii); and
0
d. Add paragraph (a)(4)


Sec.  1006.355  Nondiscrimination requirements.

    (a) Program eligibility under the Act and this part may be 
restricted to Native Hawaiians. Subject to the preceding sentence, no 
person may be discriminated against on the basis of race, color, 
national origin, religion, sex, familial status, or disability, or 
excluded from program eligibility because of actual or perceived sexual 
orientation, gender identity, or marital status. The following 
nondiscrimination requirements are applicable to the use of NHHBG 
funds:
* * * * *
    (4) The equal access to HUD-assisted or insured housing 
requirements in 24 CFR 5.105(a)(2).
    (b) [RESERVED]

PART 1007--SECTION 184A LOAN GUARANTEES FOR NATIVE HAWAIIAN HOUSING

0
9. The authority citation for 24 CFR part 1007 continues to read as 
follows:

    Authority:  12 U.S.C. 1715z-13b; 15 U.S.C. 1639c; 42 U.S.C. 
3535(d).
0
10. Amend Sec.  1007.45 to revise the heading, designate the 
undesignated paragraph as paragraph (a), and add paragraph (b) to read 
as follows:


Sec.  1007.45  Nondiscrimination

    (a) * * *
    (b) The equal access to HUD-assisted or insured housing 
requirements in 24 CFR 5.105(a)(2) apply to this part.

     Dated: March 30, 2016.
Lourdes Castro Ramirez,
Principal Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 2016-10753 Filed 5-6-16; 8:45 am]
 BILLING CODE 4210-67-P