[Title 24 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2003 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
24
Parts 0 to 199
Revised as of April 1, 2003
Housing and Urban Development
Containing a codification of documents of general
applicability and future effect
As of April 1, 2003
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 24:
Subtitle A--Office of the Secretary, Department of
Housing and Urban Development 5
Subtitle B--Regulations Relating to Housing and
Urban Development
Chapter I--Office of Assistant Secretary for Equal
Opportunity, Department of Housing and Urban
Development 627
Finding Aids:
Material Approved for Incorporation by Reference........ 739
Table of CFR Titles and Chapters........................ 741
Alphabetical List of Agencies Appearing in the CFR...... 759
List of CFR Sections Affected........................... 769
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 24 CFR 0.1 refers
to title 24, part 0,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
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Register, National Archives and Records Administration, Washington DC
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The Federal Register Index is issued monthly in cumulative form.
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the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
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REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2003.
[[Page ix]]
THIS TITLE
Title 24--Housing and Urban Development is composed of five volumes.
The first four volumes containing parts 0-199, parts 200-499, parts 500-
699, parts 700-1699, represent the regulations of the Department of
Housing and Urban Development. The fifth volume, containing part 1700 to
end continues with regulations of the Department of Housing and Urban
Development and also includes regulations of the Neighborhood
Reinvestment Corporation. The contents of these volumes represent all
current regulations codified under this title of the CFR as of April 1,
2003.
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[[Page 1]]
TITLE 24--HOUSING AND URBAN DEVELOPMENT
(This book contains parts 0 to 199)
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Part
SUBTITLE A--Office of the Secretary, Department of Housing
and Urban Development..................................... 0
SUBTITLE B--Regulations Relating to Housing and Urban
Development:..............................................
chapter i--Office of Assistant Secretary for Equal
Opportunity, Department of Housing and Urban Development.. 100
Cross References: Farmers Home Administration, Department of
Agriculture: For agricultural credit, see 7 CFR chapter XVIII.
Office of Thrift Supervision, Department of the Treasury, 12 CFR
chapter V.
Department of Veterans Affairs regulations on assistance to certain
veterans in acquiring specially adapted housing and guaranty of loans on
homes: See Pensions, Bonuses, and Veteran Relief, 38 CFR part 36.
[[Page 3]]
Subtitle A--Office of the Secretary, Department of Housing and Urban
Development
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Editorial Note: For nomenclature changes to chapter I see 59 FR 14092,
Mar. 25, 1994.
Part Page
0 Standards of conduct........................ 9
1 Nondiscrimination in federally assisted
programs of the Department of Housing
and Urban Development--effectuation of
Title VI of the Civil Rights Act of 1964 9
3 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 16
4 HUD Reform Act.............................. 33
5 General HUD program requirements; waivers... 40
6 Nondiscrimination in programs and activities
receiving assistance under Title I of
the Housing and Community Development
Act of 1974............................. 103
7 Equal employment opportunity; policy,
procedures, and programs................ 111
8 Nondiscrimination based on handicap in
federally assisted programs and
activities of the Department of Housing
and Urban Development................... 133
[[Page 4]]
9 Enforcement of nondiscrimination on the
basis of disability in programs or
activities conducted by the Department
of Housing and Urban Development........ 154
10 Rulemaking: Policy and procedures........... 165
13 Use of penalty mail in the location and
recovery of missing children............ 168
14 Implementation of the Equal Access to
Justice Act in administrative
proceedings............................. 168
15 Public access to HUD records under the
Freedom of Information Act and testimony
and production of information by HUD
employees............................... 176
16 Implementation of the Privacy Act of 1974... 188
17 Administrative claims....................... 201
18 Indemnification of HUD employees............ 228
20 Board of Contract Appeals................... 229
24 Government debarment and suspension and
governmentwide requirements for drug-
free workplace (grants)................. 239
25 Mortgagee Review Board...................... 260
26 Hearing procedures.......................... 267
27 Nonjudicial foreclosure of multifamily and
single family mortgages................. 282
28 Implementation of the Program Fraud Civil
Remedies Act of 1986.................... 290
30 Civil money penalties: certain prohibited
conduct................................. 294
35 Lead-based paint poisoning prevention in
certain residential structures.......... 303
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40 Accessibility standards for design,
construction, and alteration of publicly
owned residential structures............ 348
41 Policies and procedures for the enforcement
of standards and requirements for
accessibility by the physically
handicapped............................. 349
42 Displacement, relocation assistance, and
real property acquisition for HUD and
HUD-assisted programs................... 352
43-45 [Reserved]
50 Protection and enhancement of environmental
quality................................. 356
51 Environmental criteria and standards........ 365
52 Intergovernmental review of Department of
Housing and Urban Development programs
and activities.......................... 382
55 Floodplain management....................... 385
[[Page 6]]
58 Environmental review procedures for entities
assuming HUD environmental
responsibilities........................ 394
60 Protection of human subjects................ 412
70 Use of volunteers on projects subject to
Davis-Bacon and HUD-determined wage
rates................................... 412
81 The Secretary of HUD's regulation of the
Federal National Mortgage Association
(Fannie Mae) and the Federal Home Loan
Mortgage Corporation (Freddie Mac)...... 415
84 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, and
other non-profit organizations.......... 453
85 Administrative requirements for grants and
cooperative agreements to State, local
and federally recognized Indian tribal
governments............................. 490
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87 New restrictions on lobbying................ 517
91 Consolidated submissions for community
planning and development programs....... 529
92 Home Investment Partnerships Program........ 562
Appendixes A-C to Subtitle A [Reserved]
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PART 0--STANDARDS OF CONDUCT--Table of Contents
Sec. 0.1 Cross-reference to employees ethical conduct standards and financial disclosure regulations.
Employees of the Department of Housing and Urban Development
(Department) are subject to the executive branch-wide standards of
ethical conduct at 5 CFR part 2635, the Department's regulation at 5 CFR
part 7501 which supplements the executive branch-wide standards, and the
executive branch-wide financial disclosure regulation at 5 CFR part
2634.
5 U.S.C. 301, 7301; 42 U.S.C. 3535(d)
[61 FR 36251, July 9, 1996]
PART 1--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF
1964--Table of Contents
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Application of part 1.
1.4 Discrimination prohibited.
1.5 Assurances required.
1.6 Compliance information.
1.7 Conduct of investigations.
1.8 Procedure for effecting compliance.
1.9 Hearings.
1.10 Effect on other regulations; forms and instructions.
Authority: 42 U.S.C. 2000d-1 and 3535(d).
Source: 38 FR 17949, July 5, 1973, unless otherwise noted.
Sec. 1.1 Purpose.
The purpose of this part 1 is to effectuate the provisions of title
VI of the Civil Rights Act of 1964 (hereafter referred to as the Act) to
the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from the Department of Housing and Urban Development.
Sec. 1.2 Definitions.
As used in this part 1--
(a) The term Department means the Department of Housing and Urban
Development.
(b) The term Secretary means the Secretary of Housing and Urban
Development.
(c) The term responsible Department official means the Secretary or,
to the extent of any delegation of authority by the Secretary to act
under this part 1, any other Department official to whom the Secretary
may hereafter delegate such authority.
(d) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the term State means any one of
the foregoing.
(e) The term Federal financial assistance includes: (1) Grants,
loans, and advances of Federal funds, (2) the grant or donation of
Federal property and interests in property, (3) the detail of Federal
personnel, (4) the sale and lease of, and the permission to use (on
other than a casual or transient basis), Federal property or any
interest in such property without consideration or at a nominal
consideration, or at a consideration which is reduced for the purpose of
assisting the recipient, or in recognition of the public interest to be
served by such sale or lease to the recipient, and (5) any Federal
agreement, arrangement, or other contract which has as one of its
purposes the provision of assistance. The term Federal financial
assistance does not include a contract of insurance or guaranty.
(f) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, organization, or other entity, or
any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program or
activity, or who otherwise participates in carrying out such program or
activity (such as a redeveloper in the Urban Renewal Program), including
any successor, assign, or transferee thereof, but such term does not
include
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any ultimate beneficiary under any such program or activity.
(g) The term applicant means one who submits an application,
contract, request, or plan requiring Department approval as a condition
to eligibility for Federal financial assistance, and the term
application means such an application, contract, request, or plan.
Sec. 1.3 Application of part 1.
This part 1 applies to any program or activity for which Federal
financial assistance is authorized under a law administered by the
Department, including any program or activity assisted under the
statutes listed in appendix A of this part 1. It applies to money paid,
property transferred, or other Federal financial assistance extended to
any such program or activity on or after January 3, 1965. This part 1
does not apply to: (a) Any Federal financial assistance by way of
insurance or guaranty contracts, (b) money paid, property transferred,
or other assistance extended to any such program or activity before
January 3, 1965, (c) any assistance to any person who is the ultimate
beneficiary under any such program or activity, or (d) any employment
practice, under any such program or activity, of any employer,
employment agency, or labor organization, except to the extent described
in Sec. 1.4(c). The fact that certain financial assistance is not listed
in appendix A shall not mean, if title VI of the Act is otherwise
applicable, that such financial assistance is not covered. Other
financial assistance under statutes now in force or hereinafter enacted
may be added to this list by notice published in the Federal Register.
Sec. 1.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity to which this part 1 applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program or activity to which this part 1 applies may not,
directly or through contractual or other arrangements, on the ground of
race, color, or national origin:
(i) Deny a person any housing, accommodations, facilities, services,
financial aid, or other benefits provided under the program or activity;
(ii) Provide any housing, accommodations, facilities, services,
financial aid, or other benefits to a person which are different, or are
provided in a different manner, from those provided to others under the
program or activity;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of housing, accommodations, facilities,
services, financial aid, or other benefits under the program or
activity;
(iv) Restrict a person in any way in access to such housing,
accommodations, facilities, services, financial aid, or other benefits,
or in the enjoyment of any advantage or privilege enjoyed by others in
connection with such housing, accommodations, facilities, services,
financial aid, or other benefits under the program or activity;
(v) Treat a person differently from others in determining whether he
satisfies any occupancy, admission, enrollment, eligibility, membership,
or other requirement or condition which persons must meet in order to be
provided any housing, accommodations, facilities, services, financial
aid, or other benefits provided under the program or activity;
(vi) Deny a person opportunity to participate in the program or
activity through the provision of services or otherwise, or afford him
an opportunity to do so which is different from that afforded others
under the program or activity (including the opportunity to participate
in the program or activity as an employee but only to the extent set
forth in paragraph (c) of this section).
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2)(i) A recipient, in determining the types of housing,
accommodations, facilities, services, financial aid, or other benefits
which will be provided under any such program or activity, or the
[[Page 11]]
class of persons to whom, or the situations in which, such housing,
accommodations, facilities, services, financial aid, or other benefits
will be provided under any such program or activity, or the class of
persons to be afforded an opportunity to participate in any such program
or activity, may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration which have
the effect of subjecting persons to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
or activity as respect to persons of a particular race, color, or
national origin.
(ii) A recipient, in operating low-rent housing with Federal
financial assistance under the United States Housing Act of 1937, as
amended (42 U.S.C. 1401 et seq.), shall assign eligible applicants to
dwelling units in accordance with a plan, duly adopted by the recipient
and approved by the responsible Department official, providing for
assignment on a community-wide basis in sequence based upon the date and
time the application is received, the size or type of unit suitable, and
factors affecting preference or priority established by the recipient's
regulations, which are not inconsistent with the objectives of title VI
of the Civil Rights Act of 1964 and this part 1. The plan may allow an
applicant to refuse a tendered vacancy for good cause without losing his
standing on the list but shall limit the number of refusals without
cause as prescribed by the responsible Department official.
(iii) The responsible Department official is authorized to prescribe
and promulgate plans, exceptions, procedures, and requirements for the
assignment and reassignment of eligible applicants and tenants
consistent with the purpose of paragraph (b)(2)(ii) of this section,
this part 1, and title VI of the Civil Rights Act of 1964, in order to
effectuate and insure compliance with the requirements imposed
thereunder.
(3) In determining the site or location of housing, accommodations,
or facilities, an applicant or recipient may not make selections with
the purpose or effect of excluding individuals from, denying them the
benefits of, or subjecting them to discrimination under any program to
which this part 1 applies, on the ground of race, color, or national
origin; or with the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the Act or this part
1.
(4) As used in this part 1 the housing, accommodations, facilities,
services, financial aid, or other benefits provided under a program or
activity receiving Federal financial assistance shall be deemed to
include any housing, accommodations, facilities, services, financial
aid, or other benefits provided in or through a facility provided with
the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in paragraphs (b) and (c) of this section does not limit the generality
of the prohibition in paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program should take affirmative action to overcome
the effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.
Where previous discriminatory practice or usage tends, on the ground of
race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this part 1
applies, the applicant or recipient has an obligation to take reasonable
action to remove or overcome the consequences of the prior
discriminatory practice or usage, and to accomplish the purpose of the
Act.
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program or activity to which this part
1 applies is to provide employment, a recipient may not, directly or
through contractual or other arrangements, subject a person to
discrimination on the ground of race, color, or national origin in its
[[Page 12]]
employment practices under such program or activity (including
recruitment or recruitment advertising, employment, layoff, termination,
upgrading, demotion, transfer, rates of pay or other forms of
compensation and use of facilities). The requirements applicable to
construction employment under such program or activity shall be those
specified in or pursuant to part III of Executive Order 11246 or any
executive order which supersedes or amends it.
(2) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the ground of race,
color, or national origin in the employment practices of the recipient
or other persons subject to this part 1 tends, on the ground of race,
color, or national origin, to exclude individuals from participation in,
to deny them the benefits of, or to subject them to discrimination under
any program to which this part 1 applies, the provisions of this
paragraph (c) shall apply to the employment practices of the recipient
or other persons subject to this part 1 to the extent necessary to
assure equality of opportunity to, and nondiscriminatory treatment of,
beneficiaries.
Sec. 1.5 Assurances required.
(a) General. (1) Every contract for Federal financial assistance to
carry out a program or activity to which this part 1 applies, executed
on or after January 3, 1965, and every application for such Federal
financial assistance submitted on or after January 3, 1965, shall, as a
condition to its approval and the extension of any Federal financial
assistance pursuant to such contract or application, contain or be
accompanied by an assurance that the program or activity will be
conducted and the housing, accommodations, facilities, services,
financial aid, or other benefits to be provided will be operated and
administered in compliance with all requirements imposed by or pursuant
to this part 1. In the case of a contract or application where the
Federal financial assistance is to provide or is in the form of personal
property or real property or interest therein or structures thereon, the
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the property is
used for a purpose for which the Federal financial assistance is
extended or for another purpose involving the provision of similar
services or benefits, or for as long as the recipient retains ownership
or possession of the property, whichever is longer. In all other cases
the assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the contract or
application. The responsible Department official shall specify the form
of the foregoing assurance for such program or activity, and the extent
to which like assurances will be required of subgrantees, contractors
and subcontractors, transferees, successors in interest, and other
participants in the program or activity. Any such assurance shall
include provisions which give the United States a right to seek its
judicial enforcement.
(2) In the case of real property, structures or improvements
thereon, or interests therein, acquired through a program of Federal
financial assistance the instrument effecting any disposition by the
recipient of such real property, structures or improvements thereon, or
interests therein, shall contain a covenant running with the land
assuring nondiscrimination for the period during which the real property
is used for a purpose for which the Federal financial assistance is
extended or for another purpose involving the provision of similar
services or benefits. In the case where Federal financial assistance is
provided in the form of a transfer of real property or interests therein
from the Federal Government, the instrument effecting or recording the
transfer shall contain such a covenant.
(3) In program receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under any such
property are included as part of the program receiving such assistance,
the nondiscrimination requirements of this part 1 shall extend to any
facility located wholly or in part in such space.
(b) Preexisting contracts--funds not disbursed. In any case where a
contract for Federal financial assistance, to carry
[[Page 13]]
out a program or activity to which this part 1 applies, has been
executed prior to January 3, 1965, and the funds have not been fully
disbursed by the Department, the responsible Department official shall,
where necessary to effectuate the purposes of this part 1, require an
assurance similar to that provided in paragraph (a) of this section as a
condition to the disbursement of further funds.
(c) Preexisting contracts--periodic payments. In any case where a
contract for Federal financial assistance, to carry out a program or
activity to which this part 1 applies, has been executed prior to
January 3, 1965, and provides for periodic payments for the continuation
of the program or activity, the recipient shall, in connection with the
first application for such periodic payments on or after January 3,
1965: (1) Submit a statement that the program or activity is being
conducted in compliance with all requirements imposed by or pursuant to
this part 1 and (2) provide such methods of administration for the
program or activity as are found by the responsible Department official
to give reasonable assurance that the recipient will comply with all
requirements imposed by or pursuant to this part 1.
(d) Assurances from institutions. (1) In the case of any application
for Federal financial assistance to an institution of higher education,
the assurance required by this section shall extend to admission
practices and to all other practices relating to the treatment of
students.
(2) The assurance required with respect to an institution of higher
education, hospital, or any other institution, insofar as the assurance
relates to the institution's practices with respect to admission or
other treatment of persons as students, patients, or clients of the
institution or to the opportunity to participate in the provision of
services or other benefits to such persons, shall be applicable to the
entire institution unless the applicant establishes, to the satisfaction
of the responsible Department official, that the institution's practices
in designated parts or programs of the institution will in no way affect
its practices in the program of the institution for which Federal
financial assistance is sought, or the beneficiaries of or participants
in such program. If in any such case the assistance sought is for the
construction of a facility or part of a facility, the assurance shall in
any event extend to the entire facility and to facilities operated in
connection therewith.
(e) Elementary and secondary schools. The requirements of this
section with respect to any elementary or secondary school or school
system shall be deemed to be satisfied if such school or school system
(1) is subject to a final order of a court of the United States for the
desegregation of such school or school system, and provides an assurance
that it will comply with such order, including any future modification
of such order, or (2) submits a plan for the desegregation of such
school or school system which the responsible official of the Department
of Health and Human Services determines is adequate to accomplish the
purposes of the Act and this part 1 within the earliest practicable
time, and provides reasonable assurance that it will carry out such
plan.
[38 FR 17949, July 5, 1973, as amended at 50 FR 9269, Mar. 7, 1985]
Sec. 1.6 Compliance information.
(a) Cooperation and assistance. The responsible Department official
and each Department official who by law or delegation has the principal
responsibility within the Department for the administration of any law
extending financial assistance subject to this part 1 shall to the
fullest extent practicable seek the cooperation of recipients in
obtaining compliance with this part 1 and shall provide assistance and
guidance to recipients to help them comply voluntarily with this part 1.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible Department official or his designee timely,
complete, and accurate compliance reports at such times, and in such
form and containing such information, as the responsible Department
official or his designee may determine to be necessary to enable him to
ascertain whether the recipient has complied or is complying with this
part 1. In general, recipients should have available for the department
racial and ethnic data showing
[[Page 14]]
the extent to which members of minority groups are beneficiaries of
federally assisted programs.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Department official or his designee during
normal business hours to such of its books, records, accounts, and other
sources of information, and its facilities as may be pertinent to
ascertain compliance with this part 1. Where any information required of
a recipient is in the exclusive possession of any other agency,
institution, or person and this agency, institution, or person shall
fail or refuse to furnish this information, the recipient shall so
certify in its report and shall set forth what efforts it has made to
obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part 1 and its applicability to the program or activity under which the
recipient receives Federal financial assistance, and make such
information available to them in such manner, as the responsible
Department official finds necessary to apprise such persons of the
protections against discrimination assured them by the Act and this part
1.
Sec. 1.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official
or his designee shall from time to time review the practices of
recipients to determine whether they are complying with this part 1.
(b) Complaints. Any person who believes himself or any specific
class of persons to be subjected to discrimination prohibited by this
part 1 may by himself or by a representative file with the responsible
Department official or his designee a written complaint. A complaint
must be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official or his designee.
(c) Investigations. The responsible Department official or his
designee shall make a prompt investigation whenever a compliance review,
report, complaint, or any other information indicates a possible failure
to comply with this part 1. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this part 1 occurred, and other factors relevant to a determination as
to whether the recipient has failed to comply with this part .
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part 1, the responsible Department official or his designee will so
inform the recipient and the matter will be resolved by informal means
whenever possible. If it has been determined that the matter cannot be
resolved by informal means, action will be taken as provided for in
Sec. 1.8.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the responsible Department official or
his designee will so inform the recipient and the complainant, if any,
in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any person for the purpose of interfering with any right or privilege
secured by title VI of the Act or this part 1, or because he has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part. The identity of
complainants shall be kept confidential except to the extent necessary
to carry out the purposes of this part, including the conduct of any
investigation, hearing, or judicial proceeding arising thereunder.
Sec. 1.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part 1, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part 1 may be effected by the suspension or termination of or
refusal to grant or to continue Federal financial assistance, or by any
other means authorized by law. Such other means may include, but are not
limited to: (1) A reference to the
[[Page 15]]
Department of Justice with a recommendation that appropriate proceedings
be brought to enforce any rights of the United States under any law of
the United States (including other titles of the Act), or any assurance
or other contractual undertaking, and (2) any applicable proceeding
under State or local law.
(b) Noncompliance with Sec. 1.5. If an applicant fails or refuses to
furnish an assurance required under Sec. 1.5 or otherwise fails or
refuses to comply with the requirement imposed by or pursuant to that
section, Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The Department shall
not be required to provide assistance in such a case during the pendency
of the administrative proceedings under such paragraph, except that the
Department shall continue assistance during the pendency of such
proceedings where such assistance is due and payable pursuant to a
contract therefor approved prior to January 3, 1965.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible Department official has advised the applicant
or recipient of his failure to comply and has determined that compliance
cannot be secured by voluntary means, (2) there has been an express
finding on the record, after opportunity for hearing, of a failure by
the applicant or recipient to comply with a requirement imposed by or
pursuant to this part 1, (3) the action has been approved by the
Secretary, and (4) the expiration of 30 days after the Secretary has
filed with the committees of the House and Senate having legislative
jurisdiction over the program or activity involved a full written report
of the circumstances and the grounds for such action. Any action to
suspend or terminate or to refuse to grant or to continue Federal
financial assistance shall be limited to the particular political
entity, or part thereof, or other recipient as to whom such a finding
has been made and shall be limited in its effect to the particular
program, or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the recipient or other person has been
notified of its failure to comply and of the action to be taken to
effect compliance, and (3) the expiration of at least 10 days from the
mailing of such notice to the applicant or recipient. During this period
of at least 10 days additional efforts shall be made to persuade the
applicant or recipient to comply with this part 1 and to take such
corrective action as may be appropriate.
Sec. 1.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 1.8(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and
either:
(1) Fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
Department official that the matter be scheduled for hearing, or (2)
advise the applicant or recipient that the matter in question has been
set down for hearing at a stated time and place. The time and place so
fixed shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this paragraph (a) or
to appear at a hearing for which a date has been set shall be deemed to
be a waiver of the right to a hearing under section 602 of the Act and
Sec. 1.8(c) and consent to the making
[[Page 16]]
of a decision on the basis of such information as is available.
(b) Hearing procedures. Hearings shall be conducted in accordance
with 24 CFR part 180.
[38 FR 17949, July 5, 1973, as amended at 61 FR 52217, Oct. 4, 1996]
Sec. 1.10 Effect on other regulations; forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions heretofore issued by any officer of the Department which
impose requirements designed to prohibit any discrimination against
persons on the ground of race, color, or national origin under any
program or activity to which this part applies, and which authorize the
suspension or termination of or refusal to grant or to continue Federal
financial assistance to any applicant or recipient for failure to comply
with such requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any person of any obligation assumed or
imposed under any such superseded regulation, order, instruction, or
like direction prior to January 3, 1965. Nothing in this part, however,
shall be deemed to supersede any of the following (including future
amendments thereof):
(1) Executive Orders 11246 and 11375 and regulations issued
thereunder, or
(2) Executive Order 11063 and regulations issued thereunder, or any
other order, regulations or instructions, insofar as such order,
regulations, or instructions, prohibit discrimination on the ground of
race, color, or national origin in any program or activity or situation
to which this part is inapplicable, or prohibit discrimination on any
other ground.
(b) Forms and instructions. The responsible Department official
shall assure that forms and detailed instructions and procedures for
effectuating this part are issued and promptly made available to
interested persons.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
department or agency, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in Sec. 1.10),
including the achievement of effective coordination and maximum
uniformity within the Department and within the Executive Branch of the
Government in the application of title VI and this part to similar
programs or activities and in similar situations. Any action taken,
determination made, or requirement imposed by an official of another
department or agency acting pursuant to an assignment of responsibility
under this paragraph shall have the same effect as though such action
had been taken by the responsible official of this Department.
[38 FR 17949, July 5, 1973. Redesignated at 61 FR 52217, Oct. 4, 1996]
PART 3--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A--Introduction
Sec.
3.100 Purpose and effective date.
3.105 Definitions.
3.110 Remedial and affirmative action and self-evaluation.
3.115 Assurance required.
3.120 Transfers of property.
3.125 Effect of other requirements.
3.130 Effect of employment opportunities.
3.135 Designation of responsible employee and adoption of grievance
procedures.
3.140 Dissemination of policy.
Subpart B--Coverage
3.200 Application.
3.205 Educational institutions and other entities controlled by
religious organizations.
3.210 Military and merchant marine educational institutions.
3.215 Membership practices of certain organizations.
3.220 Admissions.
3.225 Educational institutions eligible to submit transition plans.
3.230 Transition plans.
[[Page 17]]
3.235 Statutory amendments.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
3.300 Admission.
3.305 Preference in admission.
3.310 Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
3.400 Education programs or activities.
3.405 Housing.
3.410 Comparable facilities.
3.415 Access to course offerings.
3.420 Access to schools operated by LEAs.
3.425 Counseling and use of appraisal and counseling materials.
3.430 Financial assistance.
3.435 Employment assistance to students.
3.440 Health and insurance benefits and services.
3.445 Marital or parental status.
3.450 Athletics.
3.455 Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
3.500 Employment.
3.505 Employment criteria.
3.510 Recruitment.
3.515 Compensation.
3.520 Job classification and structure.
3.525 Fringe benefits.
3.530 Marital or parental status.
3.535 Effect of state or local law or other requirements.
3.540 Advertising.
3.545 Pre-employment inquiries.
3.550 Sex as a bona fide occupational qualification.
Subpart F--Procedures
3.600 Notice of covered programs.
3.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52879, Aug. 30, 2000, unless otherwise noted.
Subpart A--Introduction
Sec. 3.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 3.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means Assistant Secretary for Fair
Housing and Equal Opportunity.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
[[Page 18]]
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates, diplomas, or degrees and
whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Secs. 3.100
through 3.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972,
[[Page 19]]
20 U.S.C. 1681(a)(2), under which an educational institution operates in
making the transition from being an educational institution that admits
only students of one sex to being one that admits students of both sexes
without discrimination.
[65 FR 52865, 52879, Aug. 30, 2000, as amended at 65 FR 52880, Aug. 30,
2000]
Sec. 3.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 3.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec. 3.110(a)
to eliminate existing discrimination on the basis of sex or to eliminate
the effects of past discrimination whether occurring prior to or
subsequent to the submission to the designated agency official of such
assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during
[[Page 20]]
which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 3.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Secs. 3.205 through 3.235(a).
Sec. 3.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 3.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 3.135 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and
[[Page 21]]
employee complaints alleging any action that would be prohibited by
these Title IX regulations.
Sec. 3.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Secs. 3.300 through 3.310 do not apply to the recipient, and that
inquiries concerning the application of Title IX and these Title IX
regulations to such recipient may be referred to the employee designated
pursuant to Sec. 3.135, or to the designated agency official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B--Coverage
Sec. 3.200 Application.
Except as provided in Secs. 3.205 through 3.235(a), these Title IX
regulations apply to every recipient and to each education program or
activity operated by such recipient that receives Federal financial
assistance.
Sec. 3.205 Educational institutions and other entities controlled by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
[[Page 22]]
Sec. 3.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 3.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 3.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Secs. 3.225 and 3.230, and Secs. 3.300 through 3.310, each
administratively separate unit shall be deemed to be an educational
institution.
(c) Application of Secs. 3.300 through 3.310. Except as provided in
paragraphs (d) and (e) of this section, Secs. 3.300 through 3.310 apply
to each recipient. A recipient to which Secs. 3.300 through 3.310 apply
shall not discriminate on the basis of sex in admission or recruitment
in violation of Secs. 3.300 through 3.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Secs. 3.300 through 3.310 apply only to institutions of vocational
education, professional education, graduate higher education, and public
institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Secs. 3.300 through 3.310 do not apply to any public institution of
undergraduate higher education that traditionally and continually from
its establishment has had a policy of admitting students of only one
sex.
Sec. 3.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Secs. 3.300 through 3.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Secs. 3.300 through 3.310.
Sec. 3.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 3.225 applies
and that is composed of more than one administratively separate unit may
submit either a single transition plan applicable to all such units, or
a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who
[[Page 23]]
submits the plan shall be the chief administrator or president of the
institution, or another individual legally authorized to bind the
institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 3.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Secs. 3.300 through 3.310
unless such treatment is necessitated by an obstacle identified in
paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 3.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 3.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system
[[Page 24]]
of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 3.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Secs. 3.300 through 3.310 apply, except as provided
in Secs. 3.225 and 3.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Secs. 3.300 through 3.310 apply shall
not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Secs. 3.300 through 3.310 apply:
[[Page 25]]
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 3.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 3.305 Preference in admission.
A recipient to which Secs. 3.300 through 3.310 apply shall not give
preference to applicants for admission, on the basis of attendance at
any educational institution or other school or entity that admits as
students only or predominantly members of one sex, if the giving of such
preference has the effect of discriminating on the basis of sex in
violation of Secs. 3.300 through 3.310.
Sec. 3.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Secs. 3.300
through 3.310 apply shall not discriminate on the basis of sex in the
recruitment and admission of students. A recipient may be required to
undertake additional recruitment efforts for one sex as remedial action
pursuant to Sec. 3.110(a), and may choose to undertake such efforts as
affirmative action pursuant to Sec. 3.110(b).
(b) Recruitment at certain institutions. A recipient to which
Secs. 3.300 through 3.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Secs. 3.300 through 3.310.
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 3.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
3.400 through 3.455 do not apply to actions of a recipient in connection
with admission of its students to an education program or activity of a
recipient to which Secs. 3.300 through 3.310 do not apply, or an entity,
not a recipient, to which Secs. 3.300 through 3.310 would not apply if
the entity were a recipient.
(b) Specific prohibitions. Except as provided in Secs. 3.400 through
3.455, in providing any aid, benefit, or service to a student, a
recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing
[[Page 26]]
any aid, benefit, or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 3.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 3.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 3.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its
[[Page 27]]
education program or activity separately on the basis of sex, or require
or refuse participation therein by any of its students on such basis,
including health, physical education, industrial, business, vocational,
technical, home economics, music, and adult education courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 3.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 3.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 3.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section,
[[Page 28]]
in providing financial assistance to any of its students, a recipient
shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 3.450.
Sec. 3.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates
Secs. 3.500 through 3.550.
Sec. 3.440 Health and insurance benefits and services.
Subject to Sec. 3.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Secs. 3.500 through 3.550 if it were provided to employees of
the recipient. This section shall not prohibit a recipient from
providing any benefit or service that may be used by a different
proportion of students of one sex than of the other, including family
planning services. However, any recipient that provides full coverage
health service shall provide gynecological care.
Sec. 3.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental,
[[Page 29]]
family, or marital status that treats students differently on the basis
of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 3.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 3.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
[[Page 30]]
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 3.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 3.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Secs. 3.500
through 3.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Secs. 3.500 through 3.550 apply
to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for
[[Page 31]]
tuition assistance, selection for sabbaticals and leaves of absence to
pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 3.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 3.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Secs. 3.500 through 3.550.
Sec. 3.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 3.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 3.550.
Sec. 3.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 3.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 3.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment
[[Page 32]]
that treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 3.235(d), a
recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, recovery therefrom, and any temporary
disability resulting therefrom as any other temporary disability for all
job-related purposes, including commencement, duration, and extensions
of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe
benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 3.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Secs. 3.500 through 3.550 is not obviated or alleviated by the existence
of any State or local law or other requirement that imposes prohibitions
or limits upon employment of members of one sex that are not imposed
upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 3.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 3.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 3.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Secs. 3.500
through 3.550 provided it is shown that sex is a bona fide occupational
qualification for that action, such that consideration of sex with
regard to such action is essential to successful operation of the
employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
[[Page 33]]
Subpart F--Procedures
Sec. 3.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 3.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 24 CFR part 1.
[65 FR 52880, Aug. 30, 2000]
PART 4--HUD REFORM ACT--Table of Contents
Subpart A--Accountability in the Provision of HUD Assistance
Sec.
4.1 Purpose.
4.3 Definitions.
4.5 Notice and documentation of assistance subject to section 102(a).
4.7 Notice of funding decisions.
4.9 Disclosure requirements for assistance subject to section 102(b).
4.11 Updating of disclosure.
4.13 Limitation of assistance subject to section 102(d).
Subpart B--Prohibition of Advance Disclosure of Funding Decisions
4.20 Purpose.
4.22 Definitions.
4.24 Scope.
4.26 Permissible and impermissible disclosures.
4.28 Civil penalties.
4.30 Procedure upon discovery of a violation.
4.32 Investigation by Office of Inspector General.
4.34 Review of Inspector General's report by the Ethics Law Division.
4.36 Action by the Ethics Law Division.
4.38 Administrative remedies.
Authority: 42 U.S.C. 3535(d), 3537a, 3545.
Source: 61 FR 14449, Apr. 1, 1996, unless otherwise noted.
Subpart A--Accountability in the Provision of HUD Assistance
Sec. 4.1 Purpose.
The provisions of this subpart A are authorized under section 102 of
the Department of Housing and Urban Development Reform Act of 1989 (Pub.
L. 101-235, approved December 15, 1989) (42 U.S.C. 3537a) (hereinafter,
Section 102). Both the provisions of Section 102 and this subpart A
apply for the purposes of Section 102. Section 102 contains a number of
provisions designed to ensure greater accountability and integrity in
the way in which the Department makes assistance available under certain
of its programs.
Sec. 4.3 Definitions.
Applicant includes a person whose application for assistance must be
submitted to HUD for any purpose including approval, environmental
review, or rent determination.
Assistance under any program or discretionary fund administered by
the Secretary is subject to Section 102(a), and means any assistance,
under any program administered by the Department, that provides by
statute, regulation or otherwise for the competitive distribution of
funding.
Assistance within the jurisdiction of the Department is subject to
Section 102(b), and means any contract, grant, loan, cooperative
agreement, or other form of assistance, including the insurance or
guarantee of a loan or mortgage, that is provided with respect to a
specific project or activity under a program administered by the
Department, whether or not it is awarded through a competitive process.
Assistance within the jurisdiction of the Department to any housing
project is subject to Section 102(d), and means:
(1) Assistance which is provided directly by HUD to any person or
entity, but not to subrecipients. It includes assistance for the
acquisition, rehabilitation, operation conversion, modernization,
renovation, or demolition of any property containing five or more
dwelling units that is to be used primarily
[[Page 34]]
for residential purposes. It includes assistance to independent group
residences, board and care facilities, group homes and transitional
housing but does not include primarily nonresidential facilities such as
intermediate care facilities, nursing homes and hospitals. It also
includes any change requested by a recipient in the amount of assistance
previously provided, except changes resulting from annual adjustments in
Section 8 rents under Section 8(c)(2)(A) of the United States Housing
Act of 1937 (42 U.S.C. 1437f);
(2) Assistance to residential rental property receiving a tax credit
under Federal, State or local law.
(3) For purposes of this definition, assistance includes assistance
resulting from annual adjustments in Section 8 rents under Section
8(c)(2)(A) of the United States Housing Act of 1937, unless the initial
assistance was made available before April 15, 1991, and no other
assistance subject to this subpart A was made available on or after that
date.
Housing project means: (1) Property containing five or more dwelling
units that is to be used for primarily residential purposes, including
(but not limited to) living arrangements such as independent group
residences, board and care facilities, group homes, and transitional
housing, but excluding facilities that provide primarily non-residential
services, such as intermediate care facilities, nursing homes, and
hospitals.
(2) Residential rental property receiving a tax credit under
Federal, State, or local law.
Interested party means any person involved in the application for
assistance, or in the planning, development or implementation of the
project or activity for which assistance is sought and any other person
who has a pecuniary interest exceeding the lower of $50,000 or 10
percent in the project or activity for which assistance is sought.
Selection criteria includes, in addition to any objective measures
of housing and other need, project merit, or efficient use of resources,
the weight or relative importance of each published selection criterion
as well as any other factors that may affect the selection of
recipients.
Sec. 4.5 Notice and documentation of assistance subject to section 102(a).
(a) Notice. Before the Department solicits an application for
assistance subject to Section 102(a), it will publish a Notice in the
Federal Register describing application procedures. Not less than 30
calendar days before the deadline by which applications must be
submitted, the Department will publish selection criteria in the Federal
Register.
(b) Documentation of decisions. HUD will make available for public
inspection, for at least five (5) years, and beginning not less than 30
calendars days after it provides the assistance, all documentation and
other information regarding the basis for the funding decision with
respect to each application submitted to HUD for assistance. HUD will
also make available any written indication of support that it received
from any applicant. Recipients of HUD assistance must ensure, in
accordance with HUD guidance, the public availability of similar
information submitted by subrecipients of HUD assistance.
Sec. 4.7 Notice of funding decisions.
HUD will publish a Notice in the Federal Register at least quarterly
to notify the public of all decisions made by the Department to provide:
(a) Assistance subject to Section 102(a); and
(b) Assistance that is provided through grants or cooperative
agreements on a discretionary (non-formula, non-demand) basis, but that
is not provided on the basis of a competition.
Sec. 4.9 Disclosure requirements for assistance subject to section 102(b).
(a) Receipt and reasonable expectation of receipt. (1) In
determining the threshold of applicability of Section 102(b), an
applicant will be deemed to have received or to have a reasonable
expectation of receiving:
(i) The total amount of assistance received during the Federal
fiscal year during which the application was submitted;
(ii) The total amount of assistance requested for the fiscal year in
which any pending application, including the
[[Page 35]]
current application, was submitted; and
(iii) For the fiscal year described in paragraph (a)(1)(ii) of this
section, the total amount of assistance from the Department or any other
entity that is likely to be made available on a formula basis or in the
form of program income as defined in 24 CFR part 85.
(2) In the case of assistance that will be provided pursuant to
contract over a period of time (such as project-based assistance under
Section 8 of the United States Housing Act of 1937), all amounts that
are to be provided over the term of the contract, irrespective of when
they are to be received.
(b) Content of disclosure. Applicants that receive or can reasonably
be expected to receive, as defined in paragraph (a) of this section, an
aggregate amount of assistance that is in excess of $200,000 must
disclose the following information:
(1) Other governmental assistance that is or is expected to be made
available, based upon a reasonable assessment of the circumstances, with
respect to the project or activities for which the assistance is sought;
(2) The name and pecuniary interest of any interested party; and
(3) A report of the expected sources and uses of funds for the
project or activity which is the subject of the application, including
governmental and non-governmental sources of funds and private capital
resulting from tax benefits.
(c) In the case of mortgage insurance under 24 CFR subtitle B,
chapter II, the mortgagor is responsible for making the disclosures
required under Section 102(b) and this section, and the mortgagee is
responsible for furnishing the mortgagor's disclosures to the
Department.
(Approved by the Office of Management and Budget under control number
2510-0011)
Sec. 4.11 Updating of disclosure.
(a) During the period in which an application for assistance covered
under Section 102(b) is pending, or in which such assistance is being
provided, the applicant must report to the Department, or to the State
or unit of general local government, as appropriate:
(1) Any information referred to in Section 102(b) that the applicant
should have disclosed with respect to the application, but did not
disclose;
(2) Any information referred to in Section 102(b) that initially
arose after the time for making disclosures under that subsection,
including the name and pecuniary interest of any person who did not have
a pecuniary interest in the project or activity that exceeded the
threshold in Section 102(b) at the time of the application, but that
subsequently exceeded the threshold.
(b) With regard to changes in information that was disclosed under
Sections 102(b) or 102(c):
(1) For programs administered by the Assistant Secretary for
Community Planning and Development:
(i) Any change in other government assistance covered by Section
102(b) that exceeds the amount of all assistance that was previously
disclosed by the lesser of $250,000 or 10 percent of the assistance;
(ii) Any change in the expected sources or uses of funds that exceed
the amount of all previously disclosed sources or uses by the lesser of
$250,000 or 10 percent of previously disclosed sources;
(2) For all other programs:
(i) Any change in other government assistance under Section
102(b)(1) that exceeds the amount of assistance that was previously
disclosed;
(ii) Any change in the pecuniary interest of any person under
Section 102(b)(2) that exceeds the amount of all previously disclosed
interests by the lesser of $50,000 or 10 percent of such interest;
(iii) For all projects receiving a tax credit under Federal, Sate or
local law, any change in the expected sources or uses of funds that were
previously disclosed;
(iv) For all other projects:
(A) Any change in the expected source of funds from a single source
that exceeds the lesser of the amount previously disclosed for that
source of funds by $250,000 or 10 percent of the funds previously
disclosed for that source;
[[Page 36]]
(B) Any change in the expected sources of funds from all sources
previously disclosed that exceeds the lesser of $250,000 or 10 percent
of the amounts previously disclosed from all sources of funds;
(C) Any change in a single expected use of funds that exceeds the
lesser of $250,000 or 10 percent of the previously disclosed use;
(D) Any change in the use of all funds that exceeds the lesser of
$250,000 or 10 percent of the previously disclosed uses for all funds.
(c) Period of coverage. For purposes of updating of Section 102(c),
an application for assistance will be considered to be pending from the
time the application is submitted until the Department communicates its
decision with respect to the selection of the applicant.
(Approved by the Office of Management and Budget under control number
2510-0011)
Sec. 4.13 Limitation of assistance subject to section 102(d).
(a) In making the certification for assistance subject to Section
102(d), the Secretary will consider the aggregate amount of assistance
from the Department and from other sources that is necessary to ensure
the feasibility of the assisted activity. The Secretary will take into
account all factors relevant to feasibility, which may include, but are
not limited to, past rates of returns for owners, sponsors, and
investors; the long-term needs of the project and its tenants; and the
usual and customary fees charged in carrying out the assisted activity.
(b) If the Department determines that the aggregate of assistance
within the jurisdiction of the Department to a housing project from the
Department and from other governmental sources exceeds the amount that
the Secretary determines is necessary to make the assisted activity
feasible, the Department will consider all options available to enable
it to make the required certification, including reductions in the
amount of Section 8 subsidies. The Department also may impose a dollar-
for-dollar, or equivalent, reduction in the amount of HUD assistance to
offset the amount of other government assistance. In grant programs,
this could result in a reduction of any grant amounts not yet drawn
down. The Department may make these adjustments immediately, or in
conjunction with servicing actions anticipated to occur in the near
future (e.g., in conjunction with the next annual adjustment of Section
8 rents).
(c) If an applicant does not meet the $200,000 disclosure
requirement in Sec. 4.7(b), an applicant must certify whether there is,
or is expected to be made, available with respect to the housing project
any other governmental assistance. The Department may also require any
applicant subject to this subpart A to submit such a certification in
conjunction with the Department's processing of any subsequent servicing
action on that project. If there is other government assistance for
purposes of the two preceding sentences, the applicant must submit such
information as the Department deems necessary to make the certification
and subsequent adjustments under Section 102(d).
(d) The certification under Section 102(d) shall be retained in the
official file for the housing project.
Subpart B--Prohibition of Advance Disclosure of Funding Decisions
Sec. 4.20 Purpose.
The provisions of this subpart B are authorized under section 103 of
the Department of Housing and Urban Development Reform Act of 1989 (Pub.
L. 101-235, approved December 15, 1989) (42 U.S.C. 3537a) (hereinafter,
Section 103). Both the provisions of Section 103 and this subpart B
apply for the purposes of Section 103. Section 103 proscribes direct or
indirect communication of certain information during the selection
process by HUD employees to persons within or outside of the Department
who are not authorized to receive that information. The purpose of the
proscription is to preclude giving an unfair advantage to applicants who
would receive information not available to other applicants or to the
public. Section 103 also authorizes the Department to impose a civil
money penalty on a HUD employee who knowingly discloses protected
information, if such a violation of Section 103 is material, and
authorizes the Department to
[[Page 37]]
sanction the person who received information improperly by, among other
things, denying assistance to that person.
Sec. 4.22 Definitions.
Application means a written request for assistance regardless of
whether the request is in proper form or format.
Assistance does not include any contract (e.g., a procurement
contract) that is subject to the Federal Acquisition Regulation (FAR)
(48 CFR ch. 1).
Disclose means providing information directly or indirectly to a
person through any means of communication.
Employee includes persons employed on a full-time, part-time, or
temporary basis, and special government employees as defined in 18
U.S.C. 202. The term applies whether or not the employee is denoted as
an officer of the Department. ``Employee'' is to be construed broadly to
include persons who are retained on a contractual or consultative basis
under an Office of Human Resources appointment. However, ``employee''
does not include an independent contractor, e.g., a firm or individual
working under the authority of a procurement contract.
Material or materially means in some influential or substantial
respect or having to do more with substance than with form.
Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, local government, or any
other organization or group of people.
Selection process means the period with respect to a selection for
assistance that begins when the HUD official responsible for awarding
the assistance involved, or his or her designee, makes a written request
(which includes the selection criteria to be used in providing the
assistance) to the Office of General Counsel (OGC) to prepare the NOFA,
solicitation, or request for applications for assistance for publication
in the Federal Register. The period includes the evaluation of
applications, and concludes with the announcement of the selection of
recipients of assistance.
Sec. 4.24 Scope.
(a) Coverage. The prohibitions against improper disclosure of
covered selection information apply to any person who is an employee of
the Department. In addition, the Department will require any other
person who participates at the invitation of the Department in the
selection process to sign a certification that he or she will be bound
by the provisions of this part.
(b) Applicability. The prohibitions contained in this part apply to
conduct occurring on or after June 12, 1991.
Sec. 4.26 Permissible and impermissible disclosures.
(a) Notwithstanding the provisions of Section 103, an employee is
permitted to disclose information during the selection process with
respect to:
(1) The requirements of a HUD program or programs, including
unpublished policy statements and the provision of technical assistance
concerning program requirements, provided that the requirements or
statements are disclosed on a uniform basis to any applicant or
potential applicant. For purposes of this part, the term ``technical
assistance'' includes such activities as explaining and responding to
questions about program regulations, defining terms in an application
package, and providing other forms of technical guidance that may be
described in a NOFA. The term ``technical assistance'' also includes
identification of those parts of an application that need substantive
improvement, but this term does not include advising the applicant how
to make those improvements.
(2) The dates by which particular decisions in the selection process
will be made;
(3) Any information which has been published in the Federal Register
in a NOFA or otherwise;
(4) Any information which has been made public through means other
than the Federal Register;
(5) An official audit, inquiry or investigation, if the disclosure
is made to an auditor or investigator authorized by the HUD Inspector
General to conduct the audit or investigation;
[[Page 38]]
(6) Legal activities, including litigation, if the disclosure is
made to an attorney who is representing or is otherwise responsible to
the Department in connection with the activities; or
(7) Procedures that are required to be performed to process an
application, e.g., environmental or budget reviews, and technical
assistance from experts in fields who are regularly employed by other
government agencies, provided that the agency with which the expert is
employed or associated is not an applicant for HUD assistance during the
pending funding cycle.
(b) An authorized employee, during the selection process, may
contact an applicant for the purpose of:
(1) Communication of the applicant's failure to qualify, after a
preliminary review for eligibility and completeness with respect to his
or her application, and the reasons for the failure to qualify, or the
fact of the applicant's failure to be determined to be technically
acceptable after a full review; or
(2) Clarification of the terms of the applicant's application. A
clarification, for the purpose of this paragraph (b), may include a
request for additional information consistent with regulatory
requirements.
(c) Prohibition of advance disclosure of funding decisions. During
the selection process an employee shall not knowingly disclose any
covered selection information regarding the selection process to any
person other than an employee authorized to receive that information.
(1) The following disclosures of information are, at any time during
the selection process, a violation of Section 103:
(i) Information regarding any applicant's relative standing;
(ii) The amount of assistance requested by any applicant;
(iii) Any information contained in an application;
(2) The following disclosures of information, before the deadline
for the submission of applications, shall be a violation of Section 103:
(i) The identity of any applicant; and
(ii) The number of applicants.
Sec. 4.28 Civil penalties.
Whenever any employee knowingly and materially violates the
prohibition in Section 103, the Department may impose a civil money
penalty on the employee in accordance with the provisions of 24 CFR part
30.
Sec. 4.30 Procedure upon discovery of a violation.
(a) In general. When an alleged violation of Section 103 or this
subpart B comes to the attention of any person, including an employee,
he or she may either:
(1) Contact the HUD Ethics Law Division to provide information about
the alleged violation; or
(2) Contact the HUD Office of Inspector General to request an
inquiry or investigation into the matter.
(b) Ethics Law Division. When the Ethics Law Division receives
information concerning an alleged violation of Section 103, it shall
refer the matter to the Inspector General stating the facts of the
alleged violation and requesting that the Inspector General make an
inquiry or investigation into the matter.
(c) Inspector General. When the Inspector General receives
information concerning an alleged violation of Section 103 or this
subpart B, he or she shall notify the Ethics Law Division when the
Inspector General begins an inquiry or investigation into the matter.
(d) Protection of employee complainants. (1) No official of the
Ethics Law Division, after receipt of information from an employee
stating the facts of an alleged violation of this part, shall disclose
the identity of the employee without the consent of that employee. The
Inspector General, after receipt of information stating the facts of an
alleged violation of this part, shall not disclose the identity of the
employee who provided the information without the consent of that
employee, unless the Inspector General determines that disclosure of the
employee's identity is unavoidable during the course of an
investigation. However, any employee who knowingly reports a false
alleged violation of this part is not so protected and may be subject to
disciplinary action.
[[Page 39]]
(2) Any employee who has authority to take, direct others to take,
recommend or approve a personnel action is prohibited from threatening,
taking, failing to take, recommending, or approving any personnel action
as reprisal against another employee for providing information to
investigating officials.
Sec. 4.32 Investigation by Office of Inspector General.
The Office of Inspector General shall review every alleged violation
of Section 103. If after a review the Office of Inspector General
determines that further investigation is not warranted, it shall notify
the Ethics Law Division of that determination. If, after a review, the
Office of Inspector General determines that additional investigation is
warranted, it shall conduct the investigation and upon completion issue
a report of the investigation to the Ethics Law Division as to each
alleged violation.
Sec. 4.34 Review of Inspector General's report by the Ethics Law Division.
After receipt of the Inspector General's report, the Ethics Law
Division shall review the facts and circumstances of the alleged
violations. In addition, the Ethics Law Division may:
(a) Return the report to the Inspector General with a request for
further investigation;
(b) Discuss the violation with the employee alleged to have
committed the violation; or
(c) Interview any other person, including employees who it believes
will be helpful in furnishing information relevant to the inquiry.
Sec. 4.36 Action by the Ethics Law Division.
(a) After review of the Inspector General's report, the Ethics Law
Division shall determine whether or not there is sufficient information
providing a reasonable basis to believe that a violation of Section 103
or this subpart B has occurred.
(b) If the Ethics Law Division determines that there is no
reasonable basis to believe that a violation of Section 103 or this
subpart B has occurred, it shall close the matter and send its
determination to the Office of Inspector General.
(c) If the Ethics Law Division determines that there is sufficient
information to provide a reasonable basis to believe that a violation of
Section 103 or this subpart B has occurred, it shall:
(1) Send its determination to the Office of Inspector General; and
(2) Refer the matter to the appropriate official for review as to
whether to impose a civil money penalty in accordance with 24 CFR part
30; provided, however, that the Ethics Law Division shall not make a
civil money penalty recommendation unless it finds the violation to have
been knowing and material. The decision to impose a civil money penalty
in a particular matter may be made only upon referral from the Ethics
Law Division.
(d) In determining whether a violation is material, the Ethics Law
Division shall consider the following factors, as applicable:
(1) The content of the disclosure and its significance to the person
to whom the disclosure was made;
(2) The time during the selection process when the disclosure was
made;
(3) The person to whom the disclosure was made;
(4) The dollar amount of assistance requested by the person to whom
the disclosure was made;
(5) The dollar amount of assistance available for a given
competition or program;
(6) The benefit, if any, received or expected by the employee, the
employee's relatives or friends, or any other person with whom the
employee is affiliated;
(7) The potential injury to the Department.
(e) If the Ethics Law Division determines that there is sufficient
information to provide a reasonable basis to believe that a violation of
Section 103 or this subpart B has occurred, it may, in addition to
referring the matter under 24 CFR part 30, refer the matter to an
appropriate HUD official for consideration of any other available
disciplinary action. Any referral authorized by this paragraph (e) shall
be reported to the Inspector General and
[[Page 40]]
may be reported to the employee's supervisor.
Sec. 4.38 Administrative remedies.
(a) If the Department receives or obtains information providing a
reasonable basis to believe that a violation of Section 103 has
occurred, the Department may impose a sanction, as determined to be
appropriate, upon an applicant for or a recipient of assistance who has
received covered selection information.
(b) In determining whether a sanction is appropriate and if so which
sanction or sanctions should be sought, the Secretary shall give
consideration to the applicant's conduct with respect to the violation.
In so doing, the Secretary shall consider the factors listed at
Sec. 4.36(d), as well as any history of prior violations in any HUD
program, the benefits received or expected, deterrence of future
violations and the extent of any complicity in the violation.
(c) The Secretary may impose a sanction authorized by this section
whether or not the Ethics Law Division refers a case under 24 CFR part
30, and whether or not a civil money penalty is imposed.
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS--Table of Contents
Subpart A--Generally Applicable Definitions and Federal Requirements;
Waivers
Sec.
5.100 Definitions.
5.105 Other Federal requirements.
5.107 Audit requirements for non-profit organizations.
5.110 Waivers.
Subpart B--Disclosure and Verification of Social Security Numbers and
Employer Identification Numbers; Procedures for Obtaining Income
Information
5.210 Purpose, applicability, and Federal preemption.
5.212 Compliance with the Privacy Act and other requirements.
5.214 Definitions.
Disclosure and Verification of Social Security Numbers and Employer
Identification Numbers for Applicants and Participants in Certain HUD
Programs
5.216 Disclosure and verification of Social Security and Employer
Identification Numbers.
5.218 Penalties for failing to disclose and verify Social Security and
Employer Identification Numbers.
Procedures for Obtaining Income Information About Applicants and
Participants
5.230 Consent by assistance applicants and participants.
5.232 Penalties for failing to sign consent forms.
5.234 Requests for information from SWICAs and Federal agencies;
restrictions on use.
5.236 Procedures for termination, denial, suspension, or reduction of
assistance based on information obtained from a SWICA or
Federal agency.
5.238 Criminal and civil penalties.
5.240 Family disclosure of income information to the responsible entity
and verification.
Subpart C--Pet Ownership for the Elderly or Persons With Disabilities
General Requirements
5.300 Purpose.
5.303 Exclusion for animals that assist persons with disabilities.
5.306 Definitions.
5.309 Prohibition against discrimination.
5.312 Notice to tenants.
5.315 Content of pet rules: General requirements.
5.318 Discretionary pet rules.
5.321 Lease provisions.
5.324 Implementation of lease provisions.
5.327 Nuisance or threat to health or safety.
Pet Ownership Requirements for Housing Programs
5.350 Mandatory pet rules for housing programs.
5.353 Housing programs: Procedure for development of pet rules.
5.356 Housing programs: Pet rule violation procedures.
5.359 Housing programs: Rejection of units by applicants for tenancy.
5.360 Housing programs: Additional lease provisions.
5.363 Housing programs: Protection of the pet.
[[Page 41]]
Pet Ownership Requirements for Public Housing Programs
5.380 Public housing programs: Procedure for development of pet rules.
Subpart D--Definitions for Section 8 and Public Housing Assistance Under
the United States Housing Act of 1937
5.400 Applicability.
5.403 Definitions.
Subpart E--Restrictions on Assistance to Noncitizens
5.500 Applicability.
5.502 Requirements concerning documents.
5.504 Definitions.
5.506 General provisions.
5.508 Submission of evidence of citizenship or eligible immigration
status.
5.510 Documents of eligible immigration status.
5.512 Verification of eligible immigration status.
5.514 Delay, denial, reduction or termination of assistance.
5.516 Availability of preservation assistance to mixed families and
other families.
5.518 Types of preservation assistance available to mixed families and
other families.
5.520 Proration of assistance.
5.522 Prohibition of assistance to noncitizen students.
5.524 Compliance with nondiscrimination requirements.
5.526 Protection from liability for responsible entities and State and
local government agencies and officials.
5.528 Liability of ineligible tenants for reimbursement of benefits.
Subpart F--Section 8 and Public Housing, and Other HUD Assisted Housing
Serving Persons with Disabilities: Family Income and Family Payment;
Occupancy Requirements for Section 8 Project-Based Assistance
5.601 Purpose and applicability.
5.603 Definitions.
Family Income
5.609 Annual income.
5.611 Adjusted income.
5.613 Public housing program and Section 8 tenant-based assistance
program: PHA cooperation with welfare agency.
5.615 Public housing program and Section 8 tenant-based assistance
program: How welfare benefit reduction affects family income.
5.617 Self-sufficiency incentives for persons with disabilities--
Disallowance of increase in annual income.
Family Payment
5.628 Total tenant payment.
5.630 Minimum rent.
5.632 Utility reimbursements.
5.634 Tenant rent.
Section 8 Project-Based Assistance: Occupancy Requirements
5.653 Section 8 project-based assistance programs: Admission--Income-
eligibility and income-targeting.
5.655 Section 8 project-based assistance programs: Owner preferences in
selection for a project or unit.
5.657 Section 8 project-based assistance programs: Reexamination of
family income and composition.
5.659 Family information and verification.
5.661 Section 8 project-based assistance programs: Approval for police
or other security personnel to live in project.
Subpart G--Physical Condition Standards and Inspection Requirements
5.701 Applicability.
5.703 Physical condition standards for HUD housing that is decent, safe,
sanitary and in good repair (DSS/GR).
5.705 Uniform physical inspection requirements.
Subpart H--Uniform Financial Reporting Standards
5.801 Uniform financial reporting standards.
Subpart I--Preventing Crime in Federally Assisted Housing--Denying
Admission and Terminating Tenancy for Criminal Activity or Alcohol Abuse
General
5.850 Which subsidized housing is covered by this subpart?
5.851 What authority do I have to screen applicants and evict tenants?
5.852 What discretion do I have in screening and eviction actions?
5.853 Definitions.
Denying Admissions
5.854 When must I prohibit admission of individuals who have engaged in
drug-related criminal activity?
5.855 When am I specifically authorized to prohibit admission of
individuals who have engaged in criminal activity?
5.856 When must I prohibit admission of sex offenders?
5.857 When must I prohibit admission of alcohol abusers?
[[Page 42]]
Terminating Tenancy
5.858 When authority do I have to evict drug criminals?
5.859 When am I specifically authorized to evict other criminals?
5.860 When am I specifically authorized to evict alcohol abusers?
5.861 What evidence of criminal activity must I have to evict?
Subpart J--Access to Criminal Records and Information
5.901 To what criminal records and searches does this subpart apply?
5.902 Definitions.
5.903 What special authority is there to obtain access to criminal
records?
5.905 What special authority is there to obtain access to sex offender
registration information?
Authority: 42 U.S.C. 3535(d), unless otherwise noted.
Source: 61 FR 5202, Feb. 9, 1996, unless otherwise noted.
Editorial Note: Nomenclature changes to part 5 appear at 65 FR
16715, Mar. 29, 2000.
Subpart A--Generally Applicable Definitions and Federal Requirements;
Waivers
Sec. 5.100 Definitions.
The following definitions apply to this part and also in other
regulations, as noted:
1937 Act means the United States Housing Act of 1937 (42 U.S.C. 1437
et seq.)
ADA means the Americans with Disabilities Act of 1990 (42 U.S.C.
12101 et seq.).
ALJ means an administrative law judge appointed to HUD pursuant to 5
U.S.C. 3105 or detailed to HUD pursuant to 5 U.S.C. 3344.
Covered person, for purposes of 24 CFR 5, subpart I, and parts 966
and 982, means a tenant, any member of the tenant's household, a guest
or another person under the tenant's control.
Department means the Department of Housing and Urban Development.
Drug means a controlled substance as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802).
Drug-related criminal activity means the illegal manufacture, sale,
distribution, or use of a drug, or the possession of a drug with intent
to manufacture, sell, distribute or use the drug.
Elderly Person means an individual who is at least 62 years of age.
Fair Housing Act means title VIII of the Civil Rights Act of 1968,
as amended by the Fair Housing Amendments Act of 1988 (42 U.S.C. 3601 et
seq.).
Fair Market Rent (FMR) means the rent that would be required to be
paid in the particular housing market area in order to obtain privately
owned, decent, safe and sanitary rental housing of modest (non-luxury)
nature with suitable amenities. This Fair Market Rent includes utilities
(except telephone). Separate Fair Market Rents will be established by
HUD for dwelling units of varying sizes (number of bedrooms) and will be
published in the Federal Register in accordance with part 888 of this
title.
Federally assisted housing (for purposes of subparts I and J of this
part) means housing assisted under any of the following programs:
(1) Public housing;
(2) Housing receiving project-based or tenant-based assistance under
Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
(3) Housing that is assisted under section 202 of the Housing Act of
1959, as amended by section 801 of the National Affordable Housing Act
(12 U.S.C. 1701q);
(4) Housing that is assisted under section 202 of the Housing Act of
1959, as such section existed before the enactment of the National
Affordable Housing Act;
(5) Housing that is assisted under section 811 of the National
Affordable Housing Act (42 U.S.C. 8013);
(6) Housing financed by a loan or mortgage insured under section
221(d)(3) of the National Housing Act (12 U.S.C. 1715l(d)(3)) that bears
interest at a rate determined under the proviso of section 221(d)(5) of
such Act (12 U.S.C. 1715l(d)(5));
(7) Housing insured, assisted, or held by HUD or by a State or local
agency under section 236 of the National Housing Act (12 U.S.C. 1715z-
1); or
(8) Housing assisted by the Rural Development Administration under
section 514 or section 515 of the Housing Act of 1949 (42 U.S.C. 1483,
1484).
[[Page 43]]
General Counsel means the General Counsel of HUD.
Grantee means the person or legal entity to which a grant is awarded
and that is accountable for the use of the funds provided.
Guest, only for purposes of 24 CFR part 5, subparts A and I, and
parts 882, 960, 966, and 982, means a person temporarily staying in the
unit with the consent of a tenant or other member of the household who
has express or implied authority to so consent on behalf of the tenant.
The requirements of parts 966 and 982 apply to a guest as so defined.
Household, for purposes of 24 CFR part 5, subpart I, and parts, 960,
966, 882, and 982, means the family and PHA-approved live-in aide.
HUD means the same as Department.
MSA means a metropolitan statistical area.
NAHA means the Cranston-Gonzalez National Affordable Housing Act (42
U.S.C. 12701 et seq.).
NEPA means the National Environmental Policy Act of 1969 (42 U.S.C.
4321).
NOFA means Notice of Funding Availability.
OMB means the Office of Management and Budget.
Organizational Unit means the jurisdictional area of each Assistant
Secretary, and each office head or field administrator reporting
directly to the Secretary.
Other person under the tenant's control, for the purposes of the
definition of covered person and for parts 5, 882, 966, and 982 means
that the person, although not staying as a guest (as defined in this
section) in the unit, is, or was at the time of the activity in
question, on the premises (as premises is defined in this section)
because of an invitation from the tenant or other member of the
household who has express or implied authority to so consent on behalf
of the tenant. Absent evidence to the contrary, a person temporarily and
infrequently on the premises solely for legitimate commercial purposes
is not under the tenant's control.
Premises, for purposes of 24 CFR part 5, subpart I, and parts 960
and 966, means the building or complex or development in which the
public or assisted housing dwelling unit is located, including common
areas and grounds.
Public housing means housing assisted under the 1937 Act, other than
under Section 8. ``Public housing'' includes dwelling units in a mixed
finance project that are assisted by a PHA with capital or operating
assistance.
Public Housing Agency (PHA) means any State, county, municipality,
or other governmental entity or public body, or agency or
instrumentality of these entities, that is authorized to engage or
assist in the development or operation of low-income housing under the
1937 Act.
Responsible entity means:
(1) For the public housing program, the Section 8 tenant-based
assistance program (part 982 of this title), and the Section 8 project-
based certificate or voucher programs (part 983 of this title), and the
Section 8 moderate rehabilitation program (part 882 of this title),
responsible entity means the PHA administering the program under an ACC
with HUD;
(2) For all other Section 8 programs, responsible entity means the
Section 8 project owner.
Section 8 means section 8 of the United States Housing Act of 1937
(42 U.S.C. 1437f).
Secretary means the Secretary of Housing and Urban Development.
URA means the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (42 U.S.C. 4201-4655).
Violent criminal activity means any criminal activity that has as
one of its elements the use, attempted use, or threatened use of
physical force substantial enough to cause, or be reasonably likely to
cause, serious bodily injury or property damage.
[61 FR 5202, Feb. 9, 1996, as amended at 63 FR 23853, Apr. 30, 1998; 65
FR 16715, Mar. 29, 2000; 66 FR 28791, May 24, 2001]
Sec. 5.105 Other Federal requirements.
The following Federal requirements apply as noted in the respective
program regulations:
(a) Nondiscrimination and equal opportunity. The Fair Housing Act
(42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100 et
seq.; Executive
[[Page 44]]
Order 11063, as amended by Executive Order 12259 (3 CFR, 1959-1963
Comp., p. 652 and 3 CFR, 1980 Comp., p. 307) (Equal Opportunity in
Housing Programs) and implementing regulations at 24 CFR part 107; title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4)
(Nondiscrimination in Federally Assisted Programs) and implementing
regulations at 24 CFR part 1; the Age Discrimination Act of 1975 (42
U.S.C. 6101-6107) and implementing regulations at 24 CFR part 146;
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and
implementing regulations at part 8 of this title; title II of the
Americans with Disabilities Act, 42 U.S.C. 12101 et seq.; 24 CFR part 8;
section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C.
1701u) and implementing regulations at 24 CFR part 135; Executive Order
11246, as amended by Executive Orders 11375, 11478, 12086, and 12107 (3
CFR, 1964-1965 Comp., p. 339; 3 CFR, 1966-1970 Comp., p. 684; 3 CFR,
1966-1970 Comp., p. 803; 3 CFR, 1978 Comp., p. 230; and 3 CFR, 1978
Comp., p. 264, respectively) (Equal Employment Opportunity Programs) and
implementing regulations at 41 CFR chapter 60; Executive Order 11625, as
amended by Executive Order 12007 (3 CFR, 1971-1975 Comp., p. 616 and 3
CFR, 1977 Comp., p. 139) (Minority Business Enterprises); Executive
Order 12432 (3 CFR, 1983 Comp., p. 198) (Minority Business Enterprise
Development); and Executive Order 12138, as amended by Executive Order
12608 (3 CFR, 1977 Comp., p. 393 and 3 CFR, 1987 Comp., p. 245) (Women's
Business Enterprise).
(b) Disclosure requirements. The disclosure requirements and
prohibitions of 31 U.S.C. 1352 and implementing regulations at 24 CFR
part 87; and the requirements for funding competitions established by
the Department of Housing and Urban Development Reform Act of 1989 (42
U.S.C. 3531 et seq.).
(c) Debarred, suspended or ineligible contractors. The prohibitions
at 24 CFR part 24 on the use of debarred, suspended or ineligible
contractors.
(d) Drug-Free Workplace. The Drug-Free Workplace Act of 1988 (41
U.S.C. 701 et seq.) and HUD's implementing regulations at 24 CFR part
24.
[61 FR 5202, Feb. 9, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.107 Audit requirements for non-profit organizations.
Non-profit organizations subject to regulations in the part 200 and
part 800 series of title 24 of the CFR shall comply with the audit
requirements of revised OMB Circular A-133, ``Audits of States, Local
Governments, and Non-profit Organizations'' (see 24 CFR 84.26). For HUD
programs, a non-profit organization is the mortgagor or owner (as these
terms are defined in the regulations in the part 200 and part 800
series) and not a related or affiliated organization or entity.
[62 FR 61617, Nov. 18, 1997]
Sec. 5.110 Waivers.
Upon determination of good cause, the Secretary may, subject to
statutory limitations, waive any provision of this title and delegate
this authority in accordance with section 106 of the Department of
Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3535(q)).
Subpart B--Disclosure and Verification of Social Security Numbers and
Employer Identification Numbers; Procedures for Obtaining Income
Information
Authority: 42 U.S.C. 3535(d), 3543, 3544, and 11901 et seq.
Source: 61 FR 11113, Mar. 18, 1996, unless otherwise noted.
Sec. 5.210 Purpose, applicability, and Federal preemption.
(a) Purpose. This subpart B requires applicants for and participants
in covered HUD programs to disclose, and submit documentation to verify,
their Social Security Numbers (SSNs). This subpart B also enables HUD
and PHAs to obtain income information about applicants and participants
in the covered programs through computer matches with State Wage
Information Collection Agencies (SWICAs) and Federal agencies, in order
to verify an applicant's or participant's eligibility for or level of
assistance. The purpose of
[[Page 45]]
this subpart B is to enable HUD to decrease the incidence of fraud,
waste, and abuse in the covered programs.
(b) Applicability. (1) This subpart B applies to mortgage and loan
insurance and coinsurance and housing assistance programs contained in
chapter II, subchapter B, and chapters VIII and IX of this title.
(2) The information covered by consent forms described in this
subpart involves income information from SWICAs, and wages, net earnings
from self-employment, payments of retirement income, and unearned income
as referenced at 26 U.S.C. 6103. In addition, consent forms may
authorize the collection of other information from applicants and
participants to determine eligibility or level of benefits.
(c) Federal preemption. This subpart B preempts any State law,
including restrictions and penalties, that governs the collection and
use of income information to the extent State law is inconsistent with
this subpart.
[61 FR 11113, Mar. 18, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.212 Compliance with the Privacy Act and other requirements.
(a) Compliance with the Privacy Act. The collection, maintenance,
use, and dissemination of SSNs, EINs, any information derived from SSNs
and Employer Identification Numbers (EINs), and income information under
this subpart shall be conducted, to the extent applicable, in compliance
with the Privacy Act (5 U.S.C. 552a) and all other provisions of
Federal, State, and local law.
(b) Privacy Act notice. All assistance applicants shall be provided
with a Privacy Act notice at the time of application. All participants
shall be provided with a Privacy Act notice at each annual income
recertification.
Sec. 5.214 Definitions.
In addition to the definitions in Sec. 5.100, the following
definitions apply to this subpart B:
Assistance applicant. Except as excluded pursuant to 42 U.S.C.
3543(b) and 3544(a)(2), this term means the following:
(1) For any program under 24 CFR parts 215, 221, 236, 290, or 891,
or any program under Section 8 of the 1937 Act: A family or individual
that seeks rental assistance under the program.
(2) For the public housing program: A family or individual that
seeks admission to the program.
(3) For any program under 24 CFR part 235: A homeowner or
cooperative member seeking homeownership assistance (including where the
individual seeks to assume an existing mortgage).
Computer match means the automated comparison of data bases
containing records about individuals.
Computer matching agreement means the agreement that describes the
responsibilities and obligations of the parties participating in a
computer match.
Consent form means any consent form approved by HUD to be signed by
assistance applicants and participants for the purpose of obtaining
income information from employers and SWICAs; return information from
the Social Security Administration (including wages, net earnings from
self-employment, and payments of retirement income), as referenced at 26
U.S.C. 6103(l)(7)(A); and return information for unearned income from
the Internal Revenue Service, as referenced at 26 U.S.C. 6103(l)(7)(B).
The consent forms expire after a certain time and may authorize the
collection of other information from assistance applicants or
participants to determine eligibility or level of benefits as provided
in Secs. 813.109, 913.109, and 950.315 of this title.
Employer Identification Number (EIN) means the nine-digit taxpayer
identifying number that is assigned to an individual, trust, estate,
partnership, association, company, or corporation pursuant to sections
6011(b), or corresponding provisions of prior law, or 6109 of the
Internal Revenue Code.
Entity applicant. (1) Except as excluded pursuant to 42 U.S.C.
3543(b), 3544(a)(2), and paragraph (2) of this definition, this term
means a partnership, corporation, or any other association or entity,
other than an individual owner applicant, that seeks to participate as a
private owner in any of the following:
(i) The project-based assistance programs under Section 8 of the
1937 Act;
[[Page 46]]
(ii) The programs in 24 CFR parts 215, 221, or 236; or
(iii) The other mortgage and loan insurance programs in 24 CFR parts
201 through 267, except that the term ``entity applicant'' does not
include a mortgagee or lender.
(2) The term does not include a public entity, such as a PHA, IHA,
or State Housing Finance Agency.
Federal agency means a department of the executive branch of the
Federal Government.
Income information means information relating to an individual's
income, including:
(1) All employment income information known to current or previous
employers or other income sources that HUD or the processing entity
determines is necessary for purposes of determining an assistance
applicant's or participant's eligibility for, or level of assistance in,
a covered program;
(2) All information about wages, as defined in the State's
unemployment compensation law, including any Social Security Number;
name of the employee; quarterly wages of the employee; and the name,
full address, telephone number, and, when known, Employer Identification
Number of an employer reporting wages under a State unemployment
compensation law;
(3) With respect to unemployment compensation:
(i) Whether an individual is receiving, has received, or has applied
for unemployment compensation;
(ii) The amount of unemployment compensation the individual is
receiving or is entitled to receive; and
(iii) The period with respect to which the individual actually
received such compensation;
(4) Unearned IRS income and self-employment, wages and retirement
income as described in the Internal Revenue Code, 26 U.S.C. 6103(l)(7);
and
(5) Wage, social security (Title II), and supplemental security
income (Title XVI) data obtaied from the Social Security Administration.
Individual owner applicant. Except as excluded pursuant to 42 U.S.C.
3543(b), 3544(a)(2), or paragraph (2) of this definition, this term
means:
(1) An individual who seeks to participate as a private owner in any
of:
(i) The project-based assistance programs under Section 8 of the
1937 Act; or
(ii) The programs in 24 CFR parts 215, 221, 235 (without
homeownership assistance), or 236, including where the individual seeks
to assume an existing mortgage; or
(2) An individual who:
(i) Either: (A) Applies for a mortgage or loan insured or coinsured
under any of the programs referred to in paragraph (1)(iii) of the
definition of ``entity applicant'' in this section; or
(B) Seeks to assume an existing mortgage or loan; and
(ii) Intends to hold the mortgaged property in his or her individual
right.
IRS means the Internal Revenue Service.
Owner means the person or entity (or employee of an owner) that
leases an assisted dwelling unit to an eligible family and includes,
when applicable, a mortgagee.
Participant. Except as excluded pursuant to 42 U.S.C. 3543(b) and
3544(a)(2), this term has the following meaning:
(1) For any program under 24 CFR part 891, or Section 8 of the 1937
Act: A family receiving rental assistance under the program;
(2) For the public housing program: A family or individual that is
assisted under the program;
(3) For 24 CFR parts 215, 221, 236, and 290: A tenant or qualified
tenant under any of the programs; and
(4) For 24 CFR part 235: A homeowner or a cooperative member
receiving homeownership assistance.
Processing entity means the person or entity that, under any of the
programs covered under this subpart B, is responsible for making
eligibility and related determinations and an income reexamination. (In
the Section 8 and public housing programs, the ``processing entity'' is
the ``responsible entity'' as defined in Sec. 5.100.)
Social Security Number (SSN) means the nine-digit number that is
assigned to a person by the Social Security Administration and that
identifies the record of the person's earnings reported to the Social
Security Administration. The term does not include a
[[Page 47]]
number with a letter as a suffix that is used to identify an auxiliary
beneficiary.
SSA means the Social Security Administration.
State Wage Information Collection Agency (SWICA) means the State
agency, including any Indian tribal agency, receiving quarterly wage
reports from employers in the State, or an alternative system that has
been determined by the Secretary of Labor to be as effective and timely
in providing employment-related income and eligibility information.
[61 FR 11113, Mar. 18, 1996, as amended at 63 FR 23853, Apr. 30, 1998;
65 FR 16715, Mar. 29, 2000]
Disclosure and Verification of Social Security Numbers and Employer
Identification Numbers for Applicants and Participants in Certain HUD
Programs
Sec. 5.216 Disclosure and verification of Social Security and Employer Identification Numbers.
(a) Disclosure: assistance applicants. Each assistance applicant
must submit the following information to the processing entity when the
assistant applicant's eligibility under the program involved is being
determined:
(1)(i) The complete and accurate SSN assigned to the assistant
applicant and to each member of the assistant applicant's household who
is at least six years of age; and
(ii) The documentation referred to in paragraph (f)(1) of this
section to verify each such SSN; or
(2) If the assistance applicant or any member of the assistance
applicant's household who is at least six years of age has not been
assigned an SSN, a certification executed by the individual involved
that meets the requirements of paragraph (j) of this section.
(b) Disclosure: individual owner applicants. Each individual owner
applicant must submit the following information to the processing entity
when the individual owner applicant's eligibility under the program
involved is being determined:
(1)(i) The complete and accurate SSNs assigned to the individual
owner applicant and to each member of the individual owner applicant's
household who will be obligated to pay the debt evidenced by the
mortgage or loan documents; and
(ii) The documentation referred to in paragraph (f)(1) of this
section to verify the SSNs; or
(2) If any person referred to in paragraph (b)(1)(i) of this section
has not been assigned an SSN, a certification executed by the individual
involved that meets the requirements of paragraph (j) of this section.
(c) Disclosure: certain officials of entity applicants. As explained
more fully in HUD administrative instructions, each officer, director,
principal stockholder, or other official of an entity applicant must
submit the following information to the processing entity when the
entity applicant's eligibility under the program involved is being
determined:
(1) The complete and accurate SSN assigned to each such individual;
and
(2) The documentation referred to in paragraph (f)(1) of this
section to verify each SSN.
(d) Disclosure: participants--(1) Initial disclosure. Each
participant whose initial determination of eligibility under the program
involved was begun before November 6, 1989, must submit the following
information to the processing entity at the next regularly scheduled
income reexamination for the program involved:
(i)(A) The complete and accurate SSN assigned to the participant and
to each member of the participant's family who is at least six years of
age; and
(B) The documentation referred to in paragraph (f)(1) of this
section to verify each such SSN; or
(ii) If the participant or any member of the participant's household
who is at least six years of age has not been assigned an SSN, a
certification executed by the individual(s) involved that meets the
requirements of paragraph (j) of this section.
(2) Subsequent disclosure. Once a participant has disclosed and
verified every SSN, or submitted any certification that an SSN has not
been assigned, as provided by paragraph (a) of this section (for an
assistance applicant) or paragraph (d)(1) (for a preexisting
participant) of this section, the following rules apply:
[[Page 48]]
(i) If the participant's household adds a new member who is at least
six years of age, the participant must submit to the processing entity,
at the next interim or regularly scheduled income reexamination that
includes the new members:
(A) The complete and accurate SSNs assigned to each new member and
the documentation referred to in paragraph (f)(1) of this section to
verify the SSNs for each new member; or
(B) If the new member has not been assigned an SSN, a certification
executed by the individual involved that meets the requirements of
paragraph (j) of this section.
(ii) If the participant or any member of the participant's household
who is at least six years of age obtains a previously undisclosed SSN,
or has been assigned a new SSN, the participant must submit the
following to the processing entity at the next regularly scheduled
income reexamination:
(A) The complete and accurate SSN assigned to the participant or
household member involved; and
(B) The documentation referred to in paragraph (f)(1) of this
section to verify the SSN of each such individual.
(iii) Additional SSN disclosure and verification requirements,
including the nature of the disclosure and the verification required and
the time and manner for making the disclosure and verification, may be
specified in administrative instructions by:
(A) HUD; and
(B) In the case of the public housing program or the programs under
parts 882 and 887 of this title, the PHA.
(e) Disclosure: entity applicants. Each entity applicant must submit
the following information to the processing entity when the entity
applicant's eligibility under the program involved is being determined:
(1) Any complete and accurate EIN assigned to the entity applicant;
and
(2) The documentation referred to in paragraph (f)(2) of this
section to verify the EIN.
(f) Required documentation--(1) Social Security Numbers. The
documentation necessary to verify the SSN of an individual who is
required to disclose his or her SSN under paragraphs (a) through (d) of
this section is a valid SSN card issued by the SSA, or such other
evidence of the SSN as HUD and, where applicable, the PHA may prescribe
in administrative instructions.
(2) Employer Identification Numbers. The documentation necessary to
verify any EIN of an entity applicant that is required to disclose its
EIN under paragraph (e) of this section is the official, written
communication from the IRS assigning the EIN to the entity applicant, or
such other evidence of the EIN as HUD may prescribe in administrative
instructions.
(g) Special documentation rules for assistance applicants and
participants--(1) Certification of inability to meet documentation
requirements. If an individual who is required to disclose his or her
SSN under paragraph (a) (assistance applicants) of this section or
paragraph (d) (participants) of this section is able to disclose the
SSN, but cannot meet the documentation requirements of paragraph (f)(1)
of this section, the assistance applicant or participant must submit to
the processing entity the individual's SSN and a certification executed
by the individual that the SSN submitted has been assigned to the
individual, but that acceptable documentation to verify the SSN cannot
be provided.
(2) Acceptance or certification by processing entity. Except as
provided by paragraph (h) of this section, the processing entity must
accept the certification referred to in paragraph (g)(1) of this section
and continue to process the assistant applicant's or participant's
eligibility to participate in the program involved.
(3) Effect on assistance applicants. If the processing entity
determines that the assistance applicant is otherwise eligible to
participate in the program, the assistance applicant may not become a
participant in the program, unless it submits to the processing entity
the documentation required under paragraph (f)(1) of this section within
the time period specified in paragraph (g)(5) of this section. During
such period, the assistance applicant will retain the position that it
occupied in the program at the time the determination of eligibility was
made, including its place on any waiting list
[[Page 49]]
maintained for the program, if applicable.
(4) Effect on participants. If the processing entity determines that
the participant otherwise continues to be eligible to participate in the
program, participation will continue, provided that the participant
submits to the processing entity the documentation required under
paragraph (f)(1) of this section within the time period specified in
paragraph (g)(5) of this section.
(5) Time for submitting documentation. The time period referred to
in paragraphs (g)(4) and (5) of this section is 60 calendar days from
the date on which the certification referred to in paragraph (g)(1) of
this section is executed, except that the processing entity may, in its
discretion, extend this period for up to an additional 60 days if the
individual is at least 62 years of age and is unable to submit the
required documentation within the initial 60-day period.
(h) Rejection of documentation or certification. The processing
entity may reject documentation referred to in paragraph (f) of this
section, or a certification provided under paragraphs (a)(2), (b)(2),
(d), or (g)(1) of this section, only for such reasons as HUD and the PHA
may prescribe in applicable administrative instructions.
(i) Information on SSNs and EINs. (1) Information regarding SSNs and
SSN cards may be obtained by contacting the local SSA Office or
consulting the SSA regulations at 20 CFR chapter III (see, particularly,
part 422).
(2) Information regarding EINs may be obtained by contacting the
local office of the IRS or consulting the appropriate regulations for
the IRS.
(j) Form and manner of certifications. The certifications referred
to in paragraphs (a)(2), (b)(2), (d), and (g)(1) of this section must be
in the form and manner that HUD and the PHA prescribe in applicable
administrative instructions. If an individual who is required to execute
a certification is less than 18 years of age, the certification must be
executed by his or her parent or guardian or, in accordance with
administrative instructions, by the individual or another person.
(Approved by the Office of Management and Budget under control number
2502-0204)
Sec. 5.218 Penalties for failing to disclose and verify Social Security and Employer Identification Numbers.
(a) Denial of eligibility: assistance applicants and individual
owner applicants. The processing entity must deny the eligibility of an
assistance applicant or individual owner applicant in accordance with
the provisions governing the program involved, if the assistance or
individual owner applicant does not meet the applicable SSN disclosure,
documentation and verification, and certification requirements specified
in Sec. 5.216.
(b) Denial of eligibility: entity applicants. The processing entity
must deny the eligibility of an entity applicant in accordance with the
provisions governing the program involved; if:
(1) The entity applicant does not meet the applicable EIN disclosure
and verification requirements specified in Sec. 5.216; or
(2) Any of the officials of the entity applicant referred to in
Sec. 5.216(c) does not meet the applicable SSN disclosure, and
documentation and verification requirements specified in Sec. 5.216.
(c) Termination of assistance or tenancy: participants. The
processing entity must terminate the assistance or tenancy, or both, of
a participant, in accordance with the provisions governing the program
involved, if the participant does not meet the applicable SSN
disclosure, documentation and verification, and certification
requirements specified in Sec. 5.216.
(d) Cross reference. Individuals should consult the regulations and
administrative instructions for the programs covered under this subpart
B for further information on the use of SSNs and EINs in determinations
regarding eligibility.
Procedures for Obtaining Income Information About Applicants and
Participants
Sec. 5.230 Consent by assistance applicants and participants.
(a) Required consent by assistance applicants and participants. Each
member of the family of an assistance applicant or participant who is at
least 18 years of age, and each family head and
[[Page 50]]
spouse regardless of age, shall sign one or more consent forms.
(b) Consent authorization--(1) To whom and when. The assistance
applicant shall submit the signed consent forms to the processing entity
when eligibility under a covered program is being determined. A
participant shall sign and submit consent forms at the next regularly
scheduled income reexamination. Assistance applicants and participants
shall be responsible for the signing and submitting of consent forms by
each applicable family member.
(2) Subsequent consent forms--special cases. Participants are
required to sign and submit consent forms at the next interim or
regularly scheduled income reexamination under the following
circumstances:
(i) When any person 18 years or older becomes a member of the
family;
(ii) When a member of the family turns 18 years of age; and
(iii) As required by HUD or the PHA in administrative instructions.
(c) Consent form--contents. The consent form required by this
section shall contain, at a minimum, the following:
(1) A provision authorizing HUD and PHAs to obtain from SWICAs any
information or materials necessary to complete or verify the application
for participation and to maintain continued assistance under a covered
program; and
(2) A provision authorizing HUD, PHAs, or the owner responsible for
determining eligibility for or the level of assistance to verify with
previous or current employers income information pertinent to the
assistance applicant's or participant's eligibility for or level of
assistance under a covered program;
(3) A provision authorizing HUD to request income return information
from the IRS and the SSA for the sole purpose of verifying income
information pertinent to the assistance applicant's or participant's
eligibility or level of benefits; and
(4) A statement that the authorization to release the information
requested by the consent form expires 15 months after the date the
consent form is signed.
Sec. 5.232 Penalties for failing to sign consent forms.
(a) Denial or termination of benefits. In accordance with the
provisions governing the program involved, if the assistance applicant
or participant, or any member of the assistance applicant's or
participant's family, does not sign and submit the consent form as
required in Sec. 5.230, then:
(1) The processing entity shall deny assistance to and admission of
an assistance applicant;
(2) Assistance to, and the tenancy of, a participant may be
terminated.
(b) Cross references. Individuals should consult the regulations and
administrative instructions for the programs covered under this subpart
B for further information on the use of income information in
determinations regarding eligibility.
Sec. 5.234 Requests for information from SWICAs and Federal agencies; restrictions on use.
(a) Information available from SWICAs and Federal agencies--to whom
and what. Income information will generally be obtained through computer
matching agreements between HUD and a SWICA or Federal agency, or
between a PHA and a SWICA, as described in paragraph (c) of this
section. Certification that the applicable assistance applicants and
participants have signed appropriate consent forms and have received the
necessary Privacy Act notice is required, as follows:
(1) When HUD requests the computer match, the processing entity
shall certify to HUD; and
(2) When the PHA requests the computer match, the PHA shall certify
to the SWICA.
(b) Restrictions on use of information. The restrictions of 42
U.S.C. 3544(c)(2)(A) apply to the use by HUD or a PHA of income
information obtained from a SWICA. The restrictions of 42 U.S.C.
3544(c)(2)(A) and of 26 U.S.C. 6103(l)(7) apply to the use by HUD or a
PHA of income information obtained from the IRS or SSA.
(c) Computer matching agreements. Computer matching agreements shall
specify the purpose and the legal authority for the match, and shall
include a description of the records to be
[[Page 51]]
matched, a statement regarding disposition of information generated
through the match, a description of the administrative and technical
safeguards to be used in protecting the information obtained through the
match, a description of the use of records, the restrictions on
duplication and redisclosure, a certification, and the amount that will
be charged for processing a request.
(Approved by the Office of Management and Budget under control number
2508-0008)
Sec. 5.236 Procedures for termination, denial, suspension, or reduction of assistance based on information obtained from a SWICA or Federal agency.
(a) Termination, denial, suspension, or reduction of assistance. The
provisions of 42 U.S.C. 3544(c)(2)(B) and (C) shall govern the
termination, denial, suspension, or reduction of benefits for an
assistance applicant or participant based on income information obtained
from a SWICA or a Federal agency. Procedures necessary to comply with
these provisions are provided in paragraph (b) of this section.
(b) Procedures for independent verification. (1) Any determination
or redetermination of family income verified in accordance with this
paragraph must be carried out in accordance with the requirements and
procedures applicable to the individual covered program. Independent
verification of information obtained from a SWICA or a Federal agency
may be:
(i) By HUD;
(ii) In the case of the public housing program, by a PHA; or
(iii) In the case of any Section 8 program, by a PHA acting as
contract administrator under an ACC.
(2) Upon receiving income information from a SWICA or a Federal
agency, HUD or, when applicable, the PHA shall compare the information
with the information about a family's income that was:
(i) Provided by the assistance applicant or participant to the PHA;
or
(ii) Obtained by the owner (or mortgagee, as applicable) from the
assistance applicant or participant or from his or her employer.
(3) When the income information reveals an employer or other income
source that was not disclosed by the assistance applicant or
participant, or when the income information differs substantially from
the information received from the assistance applicant or participant or
from his or her employer:
(i) HUD or, as applicable or directed by HUD, the PHA shall request
the undisclosed employer or other income source to furnish any
information necessary to establish an assistance applicant's or
participant's eligibility for or level of assistance in a covered
program. This information shall be furnished in writing, as directed to:
(A) HUD, with respect to programs under parts 215, 221, 235, 236, or
290 of this title;
(B) The responsible entity (as defined in Sec. 5.100) in the case of
the public housing program or any Section 8 program.
(C) The owner or mortgagee, as applicable, with respect to the rent
supplement, Section 221(d)(3) BMIR, Section 235 homeownership
assistance, or Section 236 programs.
(ii) HUD or the PHA may verify the income information directly with
an assistance applicant or participant. Such verification procedures
shall not include any disclosure of income information prohibited under
paragraph (b)(6) of this section.
(4) HUD and the PHA shall not be required to pursue these
verification procedures when the sums of money at issue are too small to
raise an inference of fraud or justify the expense of independent
verification and the procedures related to termination, denial,
suspension, or reduction of assistance.
(5) Based on the income information received from a SWICA or Federal
agency, HUD or the PHA, as appropriate, may inform an owner (or
mortgagee) that an assistance applicant's or participant's eligibility
for or level of assistance is uncertain and needs to be verified. The
owner (or mortgagee) shall then confirm the assistance applicant's or
participant's income information by checking the accuracy of the
information with the employer or other income source, or directly with
the family.
[[Page 52]]
(6) Nondisclosure of Income information. Neither HUD nor the PHA may
disclose income information obtained from a SWICA directly to an owner
(unless a PHA is the owner). Disclosure of income information obtained
from the SSA or IRS is restricted under 26 U.S.C. Sec. 6103(l)(7) and 42
U.S.C. 3544.
(c) Opportunity to contest. HUD, the PHA, or the owner (or
mortgagee, as applicable) shall promptly notify any assistance applicant
or participant in writing of any adverse findings made on the basis of
the information verified in accordance with paragraph (b) of this
section. The assistance applicant or participant may contest the
findings in the same manner as applies to other information and findings
relating to eligibility factors under the applicable program.
Termination, denial, suspension, or reduction of assistance shall be
carried out in accordance with requirements and procedures applicable to
the individual covered program, and shall not occur until the expiration
of any notice period provided by the statute or regulations governing
the program.
[61 FR 11113, Mar. 18, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.238 Criminal and civil penalties.
Persons who violate the provisions of 42 U.S.C. 3544 or 26 U.S.C.
6103(l)(7) with respect to the use and disclosure of income information
may be subject to civil or criminal penalties under 42 U.S.C.
3544(c)(3), 26 U.S.C. 7213(a), or 18 U.S.C. 1905.
Sec. 5.240 Family disclosure of income information to the responsible entity and verification.
(a) This section applies to families that reside in dwelling units
with assistance under the public housing program, the Section 8 tenant-
based assistance programs, or for which project-based assistance is
provided under the Section 8, Section 202, or Section 811 program.
(b) The family must promptly furnish to the responsible entity any
letter or other notice by HUD to a member of the family that provides
information concerning the amount or verification of family income.
(c) The responsible entity must verify the accuracy of the income
information received from the family, and change the amount of the total
tenant payment, tenant rent or Section 8 housing assistance payment, or
terminate assistance, as appropriate, based on such information.
[65 FR 16715, Mar. 29, 2000]
Subpart C--Pet Ownership for the Elderly or Persons With Disabilities
Authority: 42 U.S.C. 1701r-1 and 3535(d).
General Requirements
Sec. 5.300 Purpose.
(a) This subpart implements section 227 of the Housing and Urban-
Rural Recovery Act of 1983 (12 U.S.C. 1701r-1) as it pertains to
projects for the elderly or persons with disabilities under:
(1) The housing programs administered by the Assistant Secretary for
Housing-Federal Housing Commissioner;
(2) Projects assisted under the programs contained in chapter VIII
of this title 24; and
(3) The public housing program.
(b) [Reserved]
[61 FR 5202, Feb. 9, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.303 Exclusion for animals that assist persons with disabilities.
(a) This subpart C does not apply to animals that are used to assist
persons with disabilities. Project owners and PHAs may not apply or
enforce any pet rules developed under this subpart against individuals
with animals that are used to assist persons with disabilities. This
exclusion applies to animals that reside in projects for the elderly or
persons with disabilities, as well as to animals that visit these
projects.
(1) A project owner may require resident animals to qualify for this
exclusion. Project owners must grant this exclusion if:
(i) The tenant or prospective tenant certifies in writing that the
tenant or a member of his or her family is a person with a disability;
(ii) The animal has been trained to assist persons with that
specific disability; and
[[Page 53]]
(iii) The animal actually assists the person with a disability.
(2) [Reserved]
(b) Nothing in this subpart C:
(1) Limits or impairs the rights of persons with disabilities;
(2) Authorizes project owners or PHAs to limit or impair the rights
of persons with disabilities; or
(3) Affects any authority that project owners or PHAs may have to
regulate animals that assist persons with disabilities, under Federal,
State, or local law.
Sec. 5.306 Definitions.
Common household pet means:
(1) For purposes of Housing programs: A domesticated animal, such as
a dog, cat, bird, rodent (including a rabbit), fish, or turtle, that is
traditionally kept in the home for pleasure rather than for commercial
purposes. Common household pet does not include reptiles (except
turtles). If this definition conflicts with any applicable State or
local law or regulation defining the pets that may be owned or kept in
dwelling accommodations, the State or local law or regulation shall
apply. This definition shall not include animals that are used to assist
persons with disabilities.
(2) For purposes of Public Housing programs: PHAs may define the
term ``common household pet'' under Sec. 5.318.
Elderly or disabled family means:
(1) For purposes of Housing programs: An elderly person, a person
with a disability, or an elderly or disabled family for purposes of the
program under which a project for the elderly or persons with
disabilities is assisted or has its mortgage insured.
(2) For purposes of Public Housing programs: (i) An elderly person,
a person with a disability, or an elderly or disabled family as defined
in Sec. 5.403 in subpart A of this part.
(ii) [Reserved]
Housing programs means:
(1) The housing programs administered by the Assistant Secretary for
Housing-Federal Housing Commissioner; and
(2) The programs contained in chapter VIII of this title 24 that
assist rental projects that meet the definition of project for the
elderly or persons with disabilities in this subpart C.
Project for the elderly or persons with disabilities means:
(1) For purposes of Housing programs: (i) A specific rental or
cooperative multifamily property that, unless currently owned by HUD, is
subject to a first mortgage, and:
(A) That is assisted under statutory authority identified by HUD
through notice;
(B) That was designated for occupancy by elderly or disabled
families when funds for the project were reserved, or when the
commitment to insure the mortgage was issued or, of not then so
designated, that is designated for such occupancy in an effective
amendment to the regulatory agreement covering the project, made
pursuant to the project owner's request, and that is assisted or insured
under one of the programs identified by HUD through notice; or
(C) For which preference in tenant selection is given for all units
in the project to elderly or disabled families and that is owned by HUD
or assisted under one of the programs identified by HUD through notice.
(ii) This term does not include health and care facilities that have
mortgage insurance under the National Housing Act. This term also does
not include any of the project owner's other property that does not meet
the criteria contained in any one of paragraphs (1)(i)(A) through (C) of
this definition, even if the property is adjacent to or under joint or
common management with such specific property.
(2) For purposes of Public Housing programs: Any project assisted
under title I of the United States Housing Act of 1937 (other than under
section 8 or 17 of the Act), including any building within a mixed-use
project, that was designated for occupancy by the elderly or persons
with disabilities at its inception or, although not so designated, for
which the PHA gives preference in tenant selection (with HUD approval)
for all units in the project (or for a building within a mixed-use
project) to elderly or disabled families. For purposes of this part,
this term does not include projects assisted the Low-Rent Housing
Homeownership Opportunity program
[[Page 54]]
or under title II of the United States Housing Act of 1937.
Project owner means an owner (including HUD, where HUD is the owner)
or manager of a project for the elderly or persons with disabilities, or
an agent authorized to act for an owner or manager of such housing.
Public Housing Agency (PHA) is defined in Sec. 5.100.
[61 FR 5202, Feb. 9, 1996, as amended at 65 FR 16715, Mar. 29, 2000]
Sec. 5.309 Prohibition against discrimination.
Except as otherwise specifically authorized under this subpart no
project owner or PHA that owns or manages a project for the elderly or
persons with disabilities may:
(a) As a condition of tenancy or otherwise, prohibit or prevent any
tenant of such housing from owning common household pets or having such
pets living in the tenant's dwelling unit; or
(b) Restrict or discriminate against any person in connection with
admission to, or continued occupancy of, such housing by reason of the
person's ownership of common household pets or the presence of such pets
in the person's dwelling unit.
Sec. 5.312 Notice to tenants.
(a) During the development of pet rules as described in Secs. 5.353
or 5.380, the project owner or PHA shall serve written notice on all
tenants of projects for the elderly or persons with disabilities in
occupancy at the time of service, stating that:
(1) Tenants are permitted to own and keep common household pets in
their dwelling units, in accordance with the pet rules (if any)
promulgated under this subpart C;
(2) Animals that are used to assist persons with disabilities are
excluded from the requirements of this subpart C, as provided in
Sec. 5.303;
(3) Tenants may, at any time, request a copy of any current pet rule
developed under this subpart C (as well as any current proposed rule or
proposed amendment to an existing rule); and
(4) Tenants may request that their leases be amended under
Sec. 5.321 to permit common household pets.
(b) The project owner or PHA shall provide to each applicant for
tenancy when he or she is offered a dwelling unit in a project for the
elderly or persons with disabilities, the written notice specified in
paragraphs (a) (1), (2), and (3) of this section.
(c) If a PHA chooses not to promulgate pet rules, the notice shall
be served within 60 days of the effective date of this part. PHAs shall
serve notice under this section in accordance with their normal service
of notice procedures.
Sec. 5.315 Content of pet rules: General requirements.
(a) Housing programs. The project owner shall prescribe reasonable
rules to govern the keeping of common household pets. The pet rules must
include the mandatory rules described in Sec. 5.350 and may, unless
otherwise noted in this subpart C, include other discretionary
provisions as provided in Sec. 5.318.
(b) Public Housing programs. (1) PHAs may choose not to promulgate
rules governing the keeping of common household pets or may include
rules as provided in Sec. 5.318. PHAs may elect to include provisions
based on those in Sec. 5.350. If they so choose, the PHAs may modify the
provisions in Sec. 5.350 in any manner consistent with this subpart C.
(2) If PHAs choose to promulgate pet rules, tenants must be
permitted to own and keep pets in their units in accordance with the
terms and conditions of their leases, the provisions of this subpart C,
and any applicable State or local law or regulation governing the owning
or keeping of pets in dwelling accommodations.
(3) PHAs that choose not to promulgate pet rules, shall not impose,
by lease modification or otherwise, any requirement that is inconsistent
with the provisions of this subpart C.
(c) Use of discretion. (1) This subpart C does not define with
specificity the limits of the project owners' or PHAs' discretion to
promulgate pet rules. Where a project owner or PHA has discretion to
prescribe pet rules under this subpart C, the pet rules should be:
(i) Reasonably related to furthering a legitimate interest of the
project owner or PHA, such as the owner's or
[[Page 55]]
PHA's interest in providing a decent, safe, and sanitary living
environment for existing and prospective tenants and in protecting and
preserving the physical condition of the project and the owner's or
PHA's financial interest in it; and
(ii) Drawn narrowly to achieve the owner's or PHA's legitimate
interests, without imposing unnecessary burdens and restrictions on pet
owners and prospective pet owners.
(2) Where a project owner or PHA has discretion to prescribe pet
rules under this subpart C, the owner or PHA may vary the rules' content
among projects and within individual projects, based on factors such as
the size, type, location, and occupancy of the project or its units,
provided that the applicable rules are reasonable and do not conflict
with any applicable State or local law or regulation governing the
owning or keeping of pets in dwelling accommodations.
(d) Conflict with State or local law. The pet rules adopted by the
project owner or PHA shall not conflict with applicable State or local
law or regulations. If such a conflict may exist, the State and local
law or regulations shall apply.
Sec. 5.318 Discretionary pet rules.
Pet rules promulgated by project owners and PHAs may include, but
are not limited to, consideration of the following factors:
(a) Definitions of ``common household pet''--(1) For Public Housing
programs. The pet rules established by a PHA may contain a reasonable
definition of a common household pet.
(2) For Housing programs. Project owners wishing to define ``common
household pet'' in their pet rules must use the Housing programs
definition of the term in Sec. 5.306.
(b) Density of tenants and pets. (1)(i) The pet rules established
under this section may take into account tenant and pet density. The pet
rules may place reasonable limitations on the number of common household
pets that may be allowed in each dwelling unit. In the case of group
homes, the pet rules may place reasonable limitations on the number of
common household pets that may be allowed in each home.
(ii) For Housing programs. Under these rules, project owners may
limit the number of four-legged, warm-blooded pets to one pet in each
dwelling unit or group home.
(iii) Other than the limitations described in this paragraph (b)(1),
the pet rules may not limit the total number of pets allowed in the
project.
(2) As used in paragraph (b)(1) of this section, the term ``group
home'' means:
(i) For purposes of Housing programs. A small, communal living
arrangement designed specifically for individuals who are chronically
mentally ill, developmentally disabled, or physically disabled who
require a planned program of continual supportive services or
supervision (other than continual nursing, medical or psychiatric care).
(ii) For purposes of Public Housing programs. A dwelling or dwelling
unit for the exclusive residential use of elderly persons or persons
with disabilities who are not capable of living completely independently
and who require a planned program of continual supportive services or
supervision (other than continual nursing, medical or psychiatric care).
(c) Pet size and pet type. The pet rules may place reasonable
limitations on the size, weight, and type of common household pets
allowed in the project.
(d) Potential financial obligations of tenants--(1) Pet deposits.
The pet rules may require tenants who own or keep pets in their units to
pay a refundable pet deposit. In the case of project owners, this pet
deposit shall be limited to those tenants who own or keep cats or dogs
in their units. This deposit is in addition to any other financial
obligation generally imposed on tenants of the project. The project
owner or PHA may use the pet deposit only to pay reasonable expenses
directly attributable to the presence of the pet in the project,
including (but not limited to) the cost of repairs and replacements to,
and fumigation of, the tenant's dwelling unit and, for project owners,
the cost of animal care facilities under Sec. 5.363. The project owner
or PHA shall refund the unused portion of the pet deposit to the tenant
within a reasonable time after the tenant moves from the project or no
longer owns or keeps
[[Page 56]]
a pet (or a cat or dog in the case of project owners) in the dwelling
unit.
(2) Housing programs: Maximum pet deposit. (i) Pet deposits for the
following tenants shall not exceed an amount periodically fixed by HUD
through notice.
(A) Tenants whose rents are subsidized (including tenants of a HUD-
owned project, whose rents were subsidized before HUD acquired it) under
one of the programs identified by HUD through notice.
(B) Tenants who live in a project assisted (including tenants who
live in a HUD-owned project that was assisted before HUD acquired it)
under one of the programs identified by HUD through notice.
(C) For all other tenants of projects for the elderly or persons
with disabilities, the pet deposit shall not exceed one month's rent at
the time the pet is brought onto the premises.
(ii) In establishing the maximum amount of pet deposit under
paragraph (d)(2)(i) of this section, HUD will consider factors such as:
(A) Projected, estimated expenses directly attributable to the
presence of pets in the project;
(B) The ability of project owners to offset such expenses by use of
security deposits or HUD-reimbursable expenses; and
(C) The low income status of tenants of projects for the elderly or
persons with disabilities.
(iii) For pet deposits subject to paragraph (d)(2)(i)(A) of this
section, the pet rules shall provide for gradual accumulation of the
deposit by the pet owner through an initial payment not to exceed $50
when the pet is brought onto the premises, and subsequent monthly
payments not to exceed $10 per month until the amount of the deposit is
reached.
(iv) For pet deposits subject to paragraphs (d)(2)(i)(B) and (C) of
this section, the pet rules may provide for gradual accumulation of the
deposit by the pet owner.
(v) The project owner may (subject to the HUD-prescribed limits)
increase the amount of the pet deposit by amending the house pet rules
in accordance with Sec. 5.353.
(A) For pet deposits subject to paragraph (d)(2)(i)(A) of this
section, the house pet rules shall provide for gradual accumulation of
any such increase not to exceed $10 per month for all deposit amounts
that are being accumulated.
(B) [Reserved]
(vi) Any pet deposit that is established within the parameters set
forth by paragraph (d)(2) of this section shall be deemed reasonable for
purposes of this subpart C.
(3) Public Housing programs: Maximum pet deposit. The maximum amount
of pet deposit that may be charged by the PHA, on a per dwelling unit
basis, shall not exceed the higher of the Total Tenant Payment (as
defined in 24 CFR 913.102) or such reasonable fixed amount as the PHA
may require. The pet rules may permit gradual accumulation of the pet
deposit by the pet owner.
(4) Housing programs: Waste removal charge. The pet rules may permit
the project owner to impose a separate waste removal charge of up to
five dollars ($5) per occurrence on pet owners that fail to remove pet
waste in accordance with the prescribed pet rules. Any pet waste removal
charge that is within this five dollar ($5) limitation shall be deemed
to be a reasonable amount for the purposes of this subpart C.
(5) The pet deposit (for Housing and Public Housing programs) and
waste removal charge (for Housing programs) are not part of the rent
payable by the tenant. Except as provided in paragraph (d) of this
section for Housing programs and, paragraph (d) of this section and 24
CFR 966.4(b) for Public Housing programs, project owners or PHAs may not
prescribe pet rules that impose additional financial obligations on pet
owners that are designed to compensate the project owner or PHA for
costs associated with the presence of pets in the project, including
(but not limited to) requiring pet owners:
(i) To obtain liability or other insurance to cover damage caused by
the pet;
(ii) To agree to be strictly liable for all damages caused by the
pet where this liability is not otherwise imposed by State or local law,
or
[[Page 57]]
(iii) To indemnify the project owner for pet-related litigation and
attorney's fees.
(e) Standards of pet care. The pet rules may prescribe standards of
pet care and handling, but must be limited to those necessary to protect
the condition of the tenant's unit and the general condition of the
project premises, or to protect the health or safety of present tenants,
project employees, and the public. The pet rules may not require pet
owners to have any pet's vocal cords removed. Permitted rules may:
(1) Bar pets from specified common areas (such as lobbies, laundry
rooms, and social rooms), unless the exclusion will deny a pet
reasonable ingress and egress to the project or building.
(2) Require the pet owner to control noise and odor caused by a pet.
(3) Housing programs: Project owners may also:
(i) Require pet owners to have their dogs and cats spayed or
neutered; and
(ii) Limit the length of time that a pet may be left unattended in a
dwelling unit.
(f) Pet licensing. The pet rules may require pet owners to license
their pets in accordance with applicable State and local laws and
regulations. (Failure of the pet rules to contain this requirement does
not relieve the pet owner of responsibility for complying with
applicable State and local pet licensing requirements.)
(g) Public Housing programs: Designated pet areas. (1) PHAs may
designate buildings, floors of buildings, or sections of buildings as
no-pet areas where pets generally may not be permitted. Similarly, the
pet rules may designate buildings, floors of buildings, or sections of
buildings for residency generally by pet-owning tenants. The PHA may
direct such initial tenant moves as may be necessary to establish pet
and no-pet areas. The PHA may not refuse to admit (or delay admission
of) an applicant for tenancy on the grounds that the applicant's
admission would violate a pet or no-pet area. The PHA may adjust the pet
and no-pet areas or may direct such additional moves as may be necessary
(or both) to accommodate such applicants for tenancy or to meet the
changing needs of existing tenants.
(2) Project owners may not designate pet areas in buildings in their
pet rules.
(h) Pets temporarily on the premises. The pet rules may exclude from
the project pets not owned by a tenant that are to be kept temporarily
on the project premises. For the purposes of paragraph (h) of this
section, pets are to be kept ``temporarily'' if they are to be kept in
the tenant's dwelling accommodations for a period of less than 14
consecutive days and nights. HUD, however, encourages project owners and
PHAs to permit the use of a visiting pet program sponsored by a humane
society, or other nonprofit organization.
Sec. 5.321 Lease provisions.
(a) Lease provisions. (1) PHAs which have established pet rules and
project owners shall ensure that the leases for all tenants of projects
for the elderly or persons with disabilities:
(i) State that tenants are permitted to keep common household pets
in their dwelling units (subject to the provisions of this subpart and
the pet rules);
(ii) Shall incorporate by reference the pet rules promulgated by the
project owner or PHA;
(iii) Shall provide that the tenant agrees to comply with these
rules; and
(iv) Shall state that violation of these rules may be grounds for
removal of the pet or termination of the pet owner's tenancy (or both),
in accordance with the provisions of this subpart and applicable
regulations and State or local law.
(2) [Reserved]
(b) Where a PHA has not established pet rules, the leases of all
tenants of such projects shall not contain any provisions prohibiting
the owning or keeping of common household pets, and shall state that
owning and keeping of such pets will be subject to the general
obligations imposed on the PHA and tenants in the lease and any
applicable State or local law or regulation governing the owning or
keeping of pets in dwelling accommodations.
[[Page 58]]
Sec. 5.324 Implementation of lease provisions.
The lease for each tenant of a project for the elderly or persons
with disabilities who is admitted on or after the date on which this
subpart C is implemented shall contain the lease provisions described in
Sec. 5.321 and, if applicable, Sec. 5.360. The lease for each tenant who
occupies a unit in such a project under lease on the date of
implementation of this part shall be amended to include the provisions
described in Sec. 5.321 and, if applicable, Sec. 5.360:
(a) For Housing programs:
(1) Upon renewal of the lease and in accordance with any applicable
regulation; and
(2) When a Housing program tenant registers a common household pet
under Sec. 5.350
(b) For Public Housing programs:
(1) Upon annual reexamination of tenant income in accordance with
any applicable regulation; and
(2) When a Public Housing program tenant wishes to own or keep a
common household pet in his or her unit.
Sec. 5.327 Nuisance or threat to health or safety.
Nothing in this subpart C prohibits a project owner, PHA, or an
appropriate community authority from requiring the removal of any pet
from a project, if the pet's conduct or condition is duly determined to
constitute, under the provisions of State or local law, a nuisance or a
threat to the health or safety of other occupants of the project or of
other persons in the community where the project is located.
Pet Ownership Requirements for Housing Programs
Sec. 5.350 Mandatory pet rules for housing programs.
Mandatory rules. The project owner must prescribe the following pet
rules:
(a) Inoculations. The pet rules shall require pet owners to have
their pets inoculated in accordance with State and local laws.
(b) Sanitary standards. (1) The pet rules shall prescribe sanitary
standards to govern the disposal of pet waste. These rules may:
(i) Designate areas on the project premises for pet exercise and the
deposit of pet waste;
(ii) Forbid pet owners from exercising their pets or permitting
their pets to deposit waste on the project premises outside the
designated areas;
(iii) Require pet owners to remove and properly dispose of all
removable pet waste; and
(iv) Require pet owners to remove pets from the premises to permit
the pet to exercise or deposit waste, if no area in the project is
designated for such purposes.
(2) In the case of cats and other pets using litter boxes, the pet
rules may require the pet owner to change the litter (but not more than
twice each week), may require pet owners to separate pet waste from
litter (but not more than once each day), and may prescribe methods for
the disposal of pet waste and used litter.
(c) Pet restraint. The pet rules shall require that all cats and
dogs be appropriately and effectively restrained and under the control
of a responsible individual while on the common areas of the project.
(d) Registration. (1) The pet rules shall require pet owners to
register their pets with the project owner. The pet owner must register
the pet before it is brought onto the project premises, and must update
the registration at least annually. The project owner may coordinate the
annual update with the annual reexamination of tenant income, if
applicable. The registration must include:
(i) A certificate signed by a licensed veterinarian or a State or
local authority empowered to inoculate animals (or designated agent of
such an authority) stating that the pet has received all inoculations
required by applicable State and local law;
(ii) Information sufficient to identify the pet and to demonstrate
that it is a common household pet; and
(iii) The name, address, and phone number of one or more responsible
parties who will care for the pet if the pet owner dies, is
incapacitated, or is otherwise unable to care for the pet.
[[Page 59]]
(2) The project owner may require the pet owner to provide
additional information necessary to ensure compliance with any
discretionary rules prescribed under Sec. 5.318, and shall require the
pet owner to sign a statement indicating that he or she has read the pet
rules and agrees to comply with them.
(3) The pet rules shall permit the project owner to refuse to
register a pet if:
(i) The pet is not a common household pet;
(ii) The keeping of the pet would violate any applicable house pet
rule;
(iii) The pet owner fails to provide complete pet registration
information or fails annually to update the pet registration; or
(iv) The project owner reasonably determines, based on the pet
owner's habits and practices, that the pet owner will be unable to keep
the pet in compliance with the pet rules and other lease obligations.
The pet's temperament may be considered as a factor in determining the
prospective pet owner's ability to comply with the pet rules and other
lease obligations.
(4) The project owner may not refuse to register a pet based on a
determination that the pet owner is financially unable to care for the
pet or that the pet is inappropriate, based on the therapeutic value to
the pet owner or the interests of the property or existing tenants.
(5) The pet rules shall require the project owner to notify the pet
owner if the project owner refuses to register a pet. The notice shall
state the basis for the project owner's action and shall be served on
the pet owner in accordance with the requirements of Sec. 5.353(f)(1)(i)
or (ii). The notice of refusal to register a pet may be combined with a
notice of pet violation as required in Sec. 5.356.
Sec. 5.353 Housing programs: Procedure for development of pet rules.
(a) General. Project owners shall use the procedures specified in
this section to promulgate the pet rules referred to in Secs. 5.318 and
5.350.
(b) Development and notice of proposed pet rules. Project owners
shall develop proposed rules to govern the owning or keeping of common
household pets in projects for the elderly or persons with disabilities.
Notice of the proposed pet rules shall be served on each tenant of the
project as provided in paragraph (f) of this section. The notice shall:
(1) Include the text of the proposed rules;
(2) State that tenants or tenant representatives may submit written
comments on the rules; and
(3) State that all comments must be submitted to the project owner
no later than 30 days from the effective date of the notice of the
proposed rules.
(4) The notice may also announce the date, time, and place for a
meeting to discuss the proposed rules (as provided in paragraph (c) of
this section).
(c) Tenant consultation. Tenants or tenant representatives may
submit written comments on the proposed pet rules to the project owner
by the date specified in the notice of proposed rules. In addition, the
owner may schedule one or more meetings with tenants during the comment
period to discuss the proposed rules. Tenants and tenant representatives
may make oral comments on the proposed rules at these meetings. The
project owner must consider comments made at these meetings only if they
are summarized, reduced to writing, and submitted to the project owner
before the end of the comment period.
(d) Development and notice of final pet rules. The project owner
shall develop the final rules after reviewing tenants' written comments
and written summaries of any owner-tenant meetings. The project owner
may meet with tenants and tenant representatives to attempt to resolve
issues raised by the comments. Subject to this subpart C, the content of
the final pet rules, however, is within the sole discretion of the
project owner. The project owner shall serve on each tenant of the
project, a notice of the final pet rules as provided in paragraph (f) of
this section. The notice must include the text of the final pet rules
and must specify the effective date of the final pet rules.
(e) Amendment of pet rules. The project owner may amend the pet
rules at any time by following the procedure for the development of pet
rules specified in paragraphs (b) through (d) of this section.
[[Page 60]]
(f) Service of notice. (1) The project owner must serve the notice
required under this section by:
(i) Sending a letter by first class mail, properly stamped and
addressed to the tenant at the dwelling unit, with a proper return
address; or
(ii) Serving a copy of the notice on any adult answering the door at
the tenant's leased dwelling unit, or if no adult responds, by placing
the notice under or through the door, if possible, or else by attaching
the notice to the door; or
(iii) For service of notice to tenants of a high-rise building,
posting the notice in at least three conspicuous places within the
building and maintaining the posted notices intact and in legible form
for 30 days. For purposes of paragraph (f) of this section, a high-rise
building is a structure that is equipped with an elevator and has a
common lobby.
(2) For purposes of computing time periods following service of the
notice, service is effective on the day that all notices are delivered
or mailed, or in the case of service by posting, on the day that all
notices are initially posted.
Sec. 5.356 Housing programs: Pet rule violation procedures.
(a) Notice of pet rule violation. If a project owner determines on
the basis of objective facts, supported by written statements, that a
pet owner has violated a rule governing the owning or keeping of pets;
the project owner may serve a written notice of pet rule violation on
the pet owner in accordance with Sec. 5.353(f)(1)(i) or (ii). The notice
of pet rule violation must:
(1) Contain a brief statement of the factual basis for the
determination and the pet rule or rules alleged to be violated;
(2) State that the pet owner has 10 days from the effective date of
service of the notice to correct the violation (including, in
appropriate circumstances, removal of the pet) or to make a written
request for a meeting to discuss the violation;
(3) State that the pet owner is entitled to be accompanied by
another person of his or her choice at the meeting; and
(4) State that the pet owner's failure to correct the violation, to
request a meeting, or to appear at a requested meeting may result in
initiation of procedures to terminate the pet owner's tenancy.
(b)(1) Pet rule violation meeting. If the pet owner makes a timely
request for a meeting to discuss an alleged pet rule violation, the
project owner shall establish a mutually agreeable time and place for
the meeting but no later than 15 days from the effective date of service
of the notice of pet rule violation (unless the project owner agrees to
a later date). At the pet rule violation meeting, the pet owner and
project owner shall discuss any alleged pet rule violation and attempt
to correct it. The project owner may, as a result of the meeting, give
the pet owner additional time to correct the violation.
(2) Notice for pet removal. If the pet owner and project owner are
unable to resolve the pet rule violation at the pet rule violation
meeting, or if the project owner determines that the pet owner has
failed to correct the pet rule violation within any additional time
provided for this purpose under paragraph (b)(1) of this section, the
project owner may serve a written notice on the pet owner in accordance
with Sec. 5.353(f)(1) (i) or (ii) (or at the meeting, if appropriate),
requiring the pet owner to remove the pet. The notice must:
(i) Contain a brief statement of the factual basis for the
determination and the pet rule or rules that have been violated;
(ii) State that the pet owner must remove the pet within 10 days of
the effective date of service of the notice of pet removal (or the
meeting, if notice is served at the meeting); and
(iii) State that failure to remove the pet may result in initiation
of procedures to terminate the pet owner's tenancy.
(c) Initiation of procedures to remove a pet or terminate the pet
owner's tenancy. (1) The project owner may not initiate procedures to
terminate a pet owner's tenancy based on a pet rule violation, unless:
(i) The pet owner has failed to remove the pet or correct a pet rule
violation within the applicable time period specified in this section
(including
[[Page 61]]
any additional time permitted by the owner); and
(ii) The pet rule violation is sufficient to begin procedures to
terminate the pet owner's tenancy under the terms of the lease and
applicable regulations.
(2) The project owner may initiate procedures to remove a pet under
Sec. 5.327 at any time, in accordance with the provisions of applicable
State or local law.
Sec. 5.359 Housing programs: Rejection of units by applicants for tenancy.
(a) An applicant for tenancy in a project for the elderly or persons
with disabilities may reject a unit offered by a project owner if the
unit is in close proximity to a dwelling unit in which an existing
tenant of the project owns or keeps a common household pet. An
applicant's rejection of a unit under this section shall not adversely
affect his or her application for tenancy in the project, including (but
not limited to) his or her position on the project waiting list or
qualification for any tenant selection preference.
(b) Nothing in this subpart C imposes a duty on project owners to
provide alternate dwelling units to existing or prospective tenants
because of the proximity of common household pets to a particular unit
or the presence of such pets in the project.
Sec. 5.360 Housing programs: Additional lease provisions.
(a) Inspections. In addition to other inspections permitted under
the lease, the leases for all Housing program tenants of projects for
the elderly or persons with disabilities may state that the project
owner may, after reasonable notice to the tenant and during reasonable
hours, enter and inspect the premises. The lease shall permit entry and
inspection only if the project owner has received a signed, written
complaint alleging (or the project owner has reasonable grounds to
believe) that the conduct or condition of a pet in the dwelling unit
constitutes, under applicable State or local law, a nuisance or a threat
to the health or safety of the occupants of the project or other persons
in the community where the project is located.
(b) Emergencies. (1) If there is no State or local authority (or
designated agent of such an authority) authorized under applicable State
or local law to remove a pet that becomes vicious, displays symptoms of
severe illness, or demonstrates other behavior that constitutes an
immediate threat to the health or safety of the tenancy as a whole, the
project owner may place a provision in tenant leases permitting the
project owner to enter the premises (if necessary), remove the pet, and
take such action with respect to the pet as may be permissible under
State and local law, which may include placing it in a facility that
will provide care and shelter for a period not to exceed 30 days.
(2) The lease shall permit the project owner to enter the premises
and remove the pet or take such other permissible action only if the
project owner requests the pet owner to remove the pet from the project
immediately, and the pet owner refuses to do so, or if the project owner
is unable to contact the pet owner to make a removal request. The lease
may not contain a provision relieving the project owner from liability
for wrongful removal of a pet. The cost of the animal care facility
shall be paid as provided in Sec. 5.363.
(3) The project owner may place a provision in tenant leases
permitting the project owner to enter the premises, remove the pet, and
place the pet in a facility that will provide care and shelter, in
accordance with the provisions of Sec. 5.363. The lease may not contain
a provision relieving the project owner from liability for wrongful
removal of a pet.
Sec. 5.363 Housing programs: Protection of the pet.
(a) If the health or safety of a pet is threatened by the death or
incapacity of the pet owner, or by other factors that render the pet
owner unable to care for the pet, the project owner may contact the
responsible party or parties listed in the pet registration required
under Sec. 5.350(d)(1)(iii).
(b) If the responsible party or parties are unwilling or unable to
care for the
[[Page 62]]
pet, or the project owner, despite reasonable efforts, has been unable
to contact the responsible party or parties, the project owner may
contact the appropriate State or local authority (or designated agent of
such an authority) and request the removal of the pet.
(c) If there is no State or local authority (or designated agent of
such an authority) authorized to remove a pet under these circumstances
and the project owner has placed a provision in the lease agreement (as
described in Sec. 5.360(c)(2)), the project owner may enter the pet
owner's unit, remove the pet, and place the pet in a facility that will
provide care and shelter until the pet owner or a representative of the
pet owner is able to assume responsibility for the pet, but not longer
than 30 days.
(d) The cost of the animal care facility provided under this section
shall be borne by the pet owner. If the pet owner (or the pet owner's
estate) is unable or unwilling to pay, the cost of the animal care
facility may be paid from the pet deposit, if imposed under the pet
rules.
Pet Ownership Requirements for Public Housing Programs
Sec. 5.380 Public housing programs: Procedure for development of pet rules.
PHAs that choose to promulgate pet rules shall consult with tenants
of projects for the elderly or persons with disabilities administered by
them with respect to their promulgation and subsequent amendment. PHAs
shall develop the specific procedures governing tenant consultation, but
these procedures must be designed to give tenants (or, if appropriate,
tenant councils) adequate opportunity to review and comment upon the pet
rules before they are issued for effect. PHAs are solely responsible for
the content of final pet rules, but must give consideration to tenant
comments. PHAs shall send to the responsible HUD field office, copies of
the final (or amended) pet rules, as well as summaries or copies of all
tenant comments received in the course of the tenant consultation.
Subpart D--Definitions for Section 8 and Public Housing Assistance Under
the United States Housing Act of 1937
Authority: 42 U.S.C. 1437a and 3535(d).
Source: 61 FR 5665, Feb. 13, 1996, unless otherwise noted.
Sec. 5.400 Applicability.
This part applies to public housing and Section 8 programs.
[61 FR 5665, Feb. 13, 1996, as amended at 65 FR 16715, Mar. 29. 2000]
Sec. 5.403 Definitions.
Annual contributions contract (ACC) means the written contract
between HUD and a PHA under which HUD agrees to provide funding for a
program under the 1937 Act, and the PHA agrees to comply with HUD
requirements for the program.
Applicant means a person or a family that has applied for housing
assistance.
Disabled family means a family whose head, spouse, or sole member is
a person with disabilities. 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.
Displaced family means a family in which each member, or whose sole
member, is a person displaced by governmental action, or a person whose
dwelling has been extensively damaged or destroyed as a result of a
disaster declared or otherwise formally recognized pursuant to Federal
disaster relief laws.
Elderly family means a family whose 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:
(1) A family with or without children (the temporary absence of a
child from the home due to placement in foster care shall not be
considered in determining family composition and family size);
(2) An elderly family;
(3) A near-elderly family;
[[Page 63]]
(4) A disabled family;
(5) A displaced family;
(6) The remaining member of a tenant family; and
(7) A single person who is not an elderly or displaced person, or a
person with disabilities, or the remaining member of a tenant family.
Live-in aide means a person who resides with one or more elderly
persons, or near-elderly persons, or persons with disabilities, and who:
(1) Is determined to be essential to the care and well-being of the
persons;
(2) Is not obligated for the support of the persons; and
(3) Would not be living in the unit except to provide the necessary
supportive services.
Near-elderly family means a family whose 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.
Person with disabilities:
(1) Means a person who:
(i) Has a disability, as defined in 42 U.S.C. 423;
(ii) Is determined, pursuant to HUD regulations, to have a physical,
mental, or emotional impairment that:
(A) Is expected to be of long-continued and indefinite duration;
(B) Substantially impedes his or her ability to live independently,
and
(C) Is of such a nature that the ability to live independently could
be improved by more suitable housing conditions; or
(iii) Has a developmental disability as defined in 42 U.S.C. 6001.
(2) Does not exclude persons who have the disease of acquired
immunodeficiency syndrome or any conditions arising from the etiologic
agent for acquired immunodeficiency syndrome;
(3) For purposes of qualifying for low-income housing, does not
include a person whose disability is based solely on any drug or alcohol
dependence; and
(4) Means ``individual with handicaps'', as defined in Sec. 8.3 of
this title, for purposes of reasonable accommodation and program
accessibility for persons with disabilities.
[61 FR 5665, Feb. 13, 1996, as amended at 63 FR 23853, Apr. 30, 1998; 65
FR 16715, Mar. 29, 2000]
Subpart E--Restrictions on Assistance to Noncitizens
Authority: 42 U.S.C. 1436a and 3535(d).
Sec. 5.500 Applicability.
(a) Covered programs/assistance. This subpart E implements Section
214 of the Housing and Community Development Act of 1980, as amended (42
U.S.C. 1436a). Section 214 prohibits HUD from making financial
assistance available to persons who are not in eligible status with
respect to citizenship or noncitizen immigration status. This subpart E
is applicable to financial assistance provided under:
(1) Section 235 of the National Housing Act (12 U.S.C. 1715z) (the
Section 235 Program);
(2) Section 236 of the National Housing Act (12 U.S.C. 1715z-1)
(tenants paying below market rent only) (the Section 236 Program);
(3) Section 101 of the Housing and Urban Development Act of 1965 (12
U.S.C. 1701s) (the Rent Supplement Program); and
(4) The United States Housing Act of 1937 (42 U.S. C. 1437 et seq.)
which covers:
(i) HUD's Public Housing Programs;
(ii) The Section 8 Housing Assistance Programs; and
(iii) The Housing Development Grant Programs (with respect to low
income units only).
(b) Covered individuals and entities--(1) Covered individuals/
persons and families. The provisions of this subpart E apply to both
applicants for assistance and persons already receiving assistance
covered under this subpart E.
(2) Covered entities. The provisions of this subpart E apply to
Public Housing Agencies (PHAs), project (or housing) owners, and
mortgagees under the Section 235 Program. The term ``responsible
entity'' is used in this subpart E to refer collectively to these
entities, and is further defined in Sec. 5.504.
[[Page 64]]
Sec. 5.502 Requirements concerning documents.
For any notice or document (decision, declaration, consent form,
etc.) that this subpart E requires the responsible entity to provide to
an individual, or requires the responsible entity to obtain the
signature of an individual, the responsible entity, where feasible, must
arrange for the notice or document to be provided to the individual in a
language that is understood by the individual if the individual is not
proficient in English. (See 24 CFR 8.6 of HUD's regulations for
requirements concerning communications with persons with disabilities.)
Sec. 5.504 Definitions.
(a) The definitions 1937 Act, HUD, Public Housing Agency (PHA), and
Section 8 are defined in subpart A of this part.
(b) As used in this subpart E:
Child means a member of the family other than the family head or
spouse who is under 18 years of age.
Citizen means a citizen or national of the United States.
Evidence of citizenship or eligible status means the documents which
must be submitted to evidence citizenship or eligible immigration
status. (See Sec. 5.508(b).)
Family has the same meaning as provided in the program regulations
of the relevant Section 214 covered program.
Head of household means the adult member of the family who is the
head of the household for purposes of determining income eligibility and
rent.
Housing covered programs means the following programs administered
by the Assistant Secretary for Housing:
(1) Section 235 of the National Housing Act (12 U.S.C. 1715z) (the
Section 235 Program);
(2) Section 236 of the National Housing Act (12 U.S.C. 1715z-1)
(tenants paying below market rent only) (the Section 236 Program); and
(3) Section 101 of the Housing and Urban Development Act of 1965 (12
U.S.C. 1701s) (the Rent Supplement Program).
INS means the U.S. Immigration and Naturalization Service.
Mixed family means a family whose members include those with
citizenship or eligible immigration status, and those without
citizenship or eligible immigration status.
National means a person who owes permanent allegiance to the United
States, for example, as a result of birth in a United States territory
or possession.
Noncitizen means a person who is neither a citizen nor national of
the United States.
Project owner means the person or entity that owns the housing
project containing the assisted dwelling unit.
Public Housing covered programs means the public housing programs
administered by the Assistant Secretary for Public and Indian Housing
under title I of the 1937 Act. This definition does not encompass HUD's
Indian Housing programs administered under title II of the 1937 Act.
Further, this term does not include those programs providing assistance
under section 8 of the 1937 Act. (See definition of ``Section 8 Covered
Programs'' in this section.)
Responsible entity means the person or entity responsible for
administering the restrictions on providing assistance to noncitizens
with ineligible immigrations status. The entity responsible for
administering the restrictions on providing assistance to noncitizens
with ineligible immigration status under the various covered programs is
as follows:
(1) For the Section 235 Program, the mortgagee.
(2) For Public Housing, the Section 8 Rental Certificate, the
Section 8 Rental Voucher, and the Section 8 Moderate Rehabilitation
programs, the PHA administering the program under an ACC with HUD.
(3) For all other Section 8 programs, the Section 236 Program, and
the Rent Supplement Program, the owner.
Section 8 covered programs means all HUD programs which assist
housing under Section 8 of the 1937 Act, including Section 8-assisted
housing for which loans are made under section 202 of the Housing Act of
1959.
Section 214 means section 214 of the Housing and Community
Development Act of 1980, as amended (42 U.S.C. 1436a).
[[Page 65]]
Section 214 covered programs is the collective term for the HUD
programs to which the restrictions imposed by Section 214 apply. These
programs are set forth in Sec. 5.500.
Tenant means an individual or a family renting or occupying an
assisted dwelling unit. For purposes of this subpart E, the term tenant
will also be used to include a homebuyer, where appropriate.
Sec. 5.506 General provisions.
(a) Restrictions on assistance. Financial assistance under a Section
214 covered program is restricted to:
(1) Citizens; or
(2) Noncitizens who have eligible immigration status under one of
the categories set forth in Section 214 (see 42 U.S.C. 1436a(a)).
(b) Family eligibility for assistance. (1) A family shall not be
eligible for assistance unless every member of the family residing in
the unit is determined to have eligible status, as described in
paragraph (a) of this section, or unless the family meets the conditions
set forth in paragraph (b)(2) of this section.
(2) Despite the ineligibility of one or more family members, a mixed
family may be eligible for one of the three types of assistance provided
in Secs. 5.516 and 5.518. A family without any eligible members and
receiving assistance on June 19, 1995 may be eligible for temporary
deferral of termination of assistance as provided in Secs. 5.516 and
5.518.
(c) Preferences. Citizens of the Republic of Marshall Islands, the
Federated States of Micronesia, and the Republic of Palau who are
eligible for assistance under paragraph (a)(2) of this section are
entitled to receive local preferences for housing assistance, except
that, within Guam, such citizens who have such local preference will not
be entitled to housing assistance in preference to any United States
citizen or national resident therein who is otherwise eligible for such
assistance.
[61 FR 5202, Feb. 9, 1996, as amended at 67 FR 65273, Oct. 23, 2002]
Sec. 5.508 Submission of evidence of citizenship or eligible immigration status.
(a) General. Eligibility for assistance or continued assistance
under a Section 214 covered program is contingent upon a family's
submission to the responsible entity of the documents described in
paragraph (b) of this section for each family member. If one or more
family members do not have citizenship or eligible immigration status,
the family members may exercise the election not to contend to have
eligible immigration status as provided in paragraph (e) of this
section, and the provisions of Secs. 5.516 and 5.518 shall apply.
(b) Evidence of citizenship or eligible immigration status. Each
family member, regardless of age, must submit the following evidence to
the responsible entity.
(1) For U.S. citizens or U.S. nationals, the evidence consists of a
signed declaration of U.S. citizenship or U.S. nationality. The
responsible entity may request verification of the declaration by
requiring presentation of a United States passport or other appropriate
documentation, as specified in HUD guidance.
(2) For noncitizens who are 62 years of age or older or who will be
62 years of age or older and receiving assistance under a Section 214
covered program on September 30, 1996 or applying for assistance on or
after that date, the evidence consists of:
(i) A signed declaration of eligible immigration status; and
(ii) Proof of age document.
(3) For all other noncitizens, the evidence consists of:
(i) A signed declaration of eligible immigration status;
(ii) One of the INS documents referred to in Sec. 5.510; and
(iii) A signed verification consent form.
(c) Declaration. (1) For each family member who contends that he or
she is a U.S. citizen or a noncitizen with eligible immigration status,
the family must submit to the responsible entity a written declaration,
signed under penalty of perjury, by which the family member declares
whether he or she is a
[[Page 66]]
U.S. citizen or a noncitizen with eligible immigration status.
(i) For each adult, the declaration must be signed by the adult.
(ii) For each child, the declaration must be signed by an adult
residing in the assisted dwelling unit who is responsible for the child.
(2) For Housing covered programs: The written declaration may be
incorporated as part of the application for housing assistance or may
constitute a separate document.
(d) Verification consent form--(1) Who signs. Each noncitizen who
declares eligible immigration status (except certain noncitizens who are
62 years of age or older as described in paragraph (b)(2) of this
section) must sign a verification consent form as follows.
(i) For each adult, the form must be signed by the adult.
(ii) For each child, the form must be signed by an adult residing in
the assisted dwelling unit who is responsible for the child.
(2) Notice of release of evidence by responsible entity. The
verification consent form shall provide that evidence of eligible
immigration status may be released by the responsible entity without
responsibility for the further use or transmission of the evidence by
the entity receiving it, to:
(i) HUD, as required by HUD; and
(ii) The INS for purposes of verification of the immigration status
of the individual.
(3) Notice of release of evidence by HUD. The verification consent
form also shall notify the individual of the possible release of
evidence of eligible immigration status by HUD. Evidence of eligible
immigration status shall only be released to the INS for purposes of
establishing eligibility for financial assistance and not for any other
purpose. HUD is not responsible for the further use or transmission of
the evidence or other information by the INS.
(e) Individuals who do not contend that they have eligible status.
If one or more members of a family elect not to contend that they have
eligible immigration status, and other members of the family establish
their citizenship or eligible immigration status, the family may be
eligible for assistance under Secs. 5.516 and 5.518, or Sec. 5.520,
despite the fact that no declaration or documentation of eligible status
is submitted for one or more members of the family. The family, however,
must identify in writing to the responsible entity, the family member
(or members) who will elect not to contend that he or she has eligible
immigration status.
(f) Notification of requirements of Section 214--(1) When notice is
to be issued. Notification of the requirement to submit evidence of
citizenship or eligible immigration status, as required by this section,
or to elect not to contend that one has eligible status as provided by
paragraph (e) of this section, shall be given by the responsible entity
as follows:
(i) Applicant's notice. The notification described in paragraph
(f)(1) of this section shall be given to each applicant at the time of
application for assistance. Applicants whose applications are pending on
June 19, 1995, shall be notified of the requirement to submit evidence
of eligible status as soon as possible after June 19, 1995.
(ii) Notice to tenants. The notification described in paragraph
(f)(1) of this section shall be given to each tenant at the time of, and
together with, the responsible entity's notice of regular reexamination
of income, but not later than one year following June 19, 1995.
(iii) Timing of mortgagor's notice. A mortgagor receiving Section
235 assistance must be provided the notification described in paragraph
(f)(1) of this section and any additional requirements imposed under the
Section 235 Program.
(2) Form and content of notice. The notice shall:
(i) State that financial assistance is contingent upon the
submission and verification, as appropriate, of evidence of citizenship
or eligible immigration status as required by paragraph (a) of this
section;
(ii) Describe the type of evidence that must be submitted, and state
the time period in which that evidence must be submitted (see paragraph
(g) of this section concerning when evidence must be submitted); and
(iii) State that assistance will be prorated, denied or terminated,
as appropriate, upon a final determination of
[[Page 67]]
ineligibility after all appeals have been exhausted (see Sec. 5.514
concerning INS appeal, and informal hearing process) or, if appeals are
not pursued, at a time to be specified in accordance with HUD
requirements. Tenants also shall be informed of how to obtain assistance
under the preservation of families provisions of Secs. 5.516 and 5.518.
(g) When evidence of eligible status is required to be submitted.
The responsible entity shall require evidence of eligible status to be
submitted at the times specified in paragraph (g) of this section,
subject to any extension granted in accordance with paragraph (h) of
this section.
(1) Applicants. For applicants, responsible entities must ensure
that evidence of eligible status is submitted not later than the date
the responsible entity anticipates or has knowledge that verification of
other aspects of eligibility for assistance will occur (see
Sec. 5.512(a)).
(2) Tenants. For tenants, evidence of eligible status is required to
be submitted as follows:
(i) For financial assistance under a Section 214 covered program,
with the exception of Section 235 assistance payments, the required
evidence shall be submitted at the first regular reexamination after
June 19, 1995, in accordance with program requirements.
(ii) For financial assistance in the form of Section 235 assistance
payments, the mortgagor shall submit the required evidence in accordance
with requirements imposed under the Section 235 Program.
(3) New occupants of assisted units. For any new occupant of an
assisted unit (e.g., a new family member comes to reside in the assisted
unit), the required evidence shall be submitted at the first interim or
regular reexamination following the person's occupancy.
(4) Changing participation in a HUD program. Whenever a family
applies for admission to a Section 214 covered program, evidence of
eligible status is required to be submitted in accordance with the
requirements of this subpart unless the family already has submitted the
evidence to the responsible entity for a Section 214 covered program.
(5) One-time evidence requirement for continuous occupancy. For each
family member, the family is required to submit evidence of eligible
status only one time during continuously assisted occupancy under any
Section 214 covered program.
(h) Extensions of time to submit evidence of eligible status--(1)
When extension must be granted. The responsible entity shall extend the
time, provided in paragraph (g) of this section, to submit evidence of
eligible immigration status if the family member:
(i) Submits the declaration required under Sec. 5.508(a) certifying
that any person for whom required evidence has not been submitted is a
noncitizen with eligible immigration status; and
(ii) Certifies that the evidence needed to support a claim of
eligible immigration status is temporarily unavailable, additional time
is needed to obtain and submit the evidence, and prompt and diligent
efforts will be undertaken to obtain the evidence.
(2) Thirty-day extension period. Any extension of time, if granted,
shall not exceed thirty (30) days. The additional time provided should
be sufficient to allow the individual the time to obtain the evidence
needed. The responsible entity's determination of the length of the
extension needed shall be based on the circumstances of the individual
case.
(3) Grant or denial of extension to be in writing. The responsible
entity's decision to grant or deny an extension as provided in paragraph
(h)(1) of this section shall be issued to the family by written notice.
If the extension is granted, the notice shall specify the extension
period granted (which shall not exceed thirty (30) days). If the
extension is denied, the notice shall explain the reasons for denial of
the extension.
(i) Failure to submit evidence or to establish eligible status. If
the family fails to submit required evidence of eligible immigration
status within the time period specified in the notice, or any extension
granted in accordance with paragraph (h) of this section, or if the
evidence is timely submitted but fails
[[Page 68]]
to establish eligible immigration status, the responsible entity shall
proceed to deny, prorate or terminate assistance, or provide continued
assistance or temporary deferral of termination of assistance, as
appropriate, in accordance with the provisions of Secs. 5.514, 5.516,
and 5.518.
(ii) [Reserved]
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60538, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
Sec. 5.510 Documents of eligible immigration status.
(a) General. A responsible entity shall request and review original
documents of eligible immigration status. The responsible entity shall
retain photocopies of the documents for its own records and return the
original documents to the family.
(b) Acceptable evidence of eligible immigration status. Acceptable
evidence of eligible immigration status shall be the original of a
document designated by INS as acceptable evidence of immigration status
in one of the six categories mentioned in Sec. 5.506(a) for the specific
immigration status claimed by the individual.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
Sec. 5.512 Verification of eligible immigration status.
(a) General. Except as described in paragraph (b) of this section
and Sec. 5.514, no individual or family applying for assistance may
receive such assistance prior to the verification of the eligibility of
at least the individual or one family member. Verification of
eligibility consistent with Sec. 5.514 occurs when the individual or
family members have submitted documentation to the responsible entity in
accordance with Sec. 5.508.
(b) PHA election to provide assistance before verification. A PHA
that is a responsible entity under this subpart may elect to provide
assistance to a family before the verification of the eligibility of the
individual or one family member.
(c) Primary verification--(1) Automated verification system. Primary
verification of the immigration status of the person is conducted by the
responsible entity through the INS automated system (INS Systematic
Alien Verification for Entitlements (SAVE)). The INS SAVE system
provides access to names, file numbers and admission numbers of
noncitizens.
(2) Failure of primary verification to confirm eligible immigration
status. If the INS SAVE system does not verify eligible immigration
status, secondary verification must be performed.
(d) Secondary verification--(1) Manual search of INS records.
Secondary verification is a manual search by the INS of its records to
determine an individual's immigration status. The responsible entity
must request secondary verification, within 10 days of receiving the
results of the primary verification, if the primary verification system
does not confirm eligible immigration status, or if the primary
verification system verifies immigration status that is ineligible for
assistance under a Section 214 covered program.
(2) Secondary verification initiated by responsible entity.
Secondary verification is initiated by the responsible entity forwarding
photocopies of the original INS documents required for the immigration
status declared (front and back), attached to the INS document
verification request form G-845S (Document Verification Request), or
such other form specified by the INS to a designated INS office for
review. (Form G-845S is available from the local INS Office.)
(3) Failure of secondary verification to confirm eligible
immigration status. If the secondary verification does not confirm
eligible immigration status, the responsible entity shall issue to the
family the notice described in Sec. 5.514(d), which includes
notification of the right to appeal to the INS of the INS finding on
immigration status (see Sec. 5.514(d)(4)).
(e) Exemption from liability for INS verification. The responsible
entity shall not be liable for any action, delay, or failure of the INS
in conducting the automated or manual verification.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
[[Page 69]]
Sec. 5.514 Delay, denial, reduction or termination of assistance.
(a) General. Assistance to a family may not be delayed, denied,
reduced or terminated because of the immigration status of a family
member except as provided in this section.
(b) Restrictions on delay, denial, reduction or termination of
assistance. (1) Restrictions on reduction, denial or termination of
assistance for applicants and tenants. Assistance to an applicant or
tenant shall not be delayed, denied, reduced, or terminated, on the
basis of ineligible immigration status of a family member if:
(i) The primary and secondary verification of any immigration
documents that were timely submitted has not been completed;
(ii) The family member for whom required evidence has not been
submitted has moved from the assisted dwelling unit;
(iii) The family member who is determined not to be in an eligible
immigration status following INS verification has moved from the
assisted dwelling unit;
(iv) The INS appeals process under Sec. 5.514(e) has not been
concluded;
(v) Assistance is prorated in accordance with Sec. 5.520; or
(vi) Assistance for a mixed family is continued in accordance with
Secs. 5.516 and 5.518; or
(vii) Deferral of termination of assistance is granted in accordance
with Secs. 5.516 and 5.518.
(2) Restrictions on delay, denial, reduction or termination of
assistance pending fair hearing for tenants. In addition to the factors
listed in paragraph (b)(1) of this section, assistance to a tenant
cannot be delayed, denied, reduced or terminated until the completion of
the informal hearing described in paragraph (f) of this section.
(c) Events causing denial or termination of assistance. (1) General.
Assistance to an applicant shall be denied, and a tenant's assistance
shall be terminated, in accordance with the procedures of this section,
upon the occurrence of any of the following events:
(i) Evidence of citizenship (i.e., the declaration) and eligible
immigration status is not submitted by the date specified in
Sec. 5.508(g) or by the expiration of any extension granted in
accordance with Sec. 5.508(h);
(ii) Evidence of citizenship and eligible immigration status is
timely submitted, but INS primary and secondary verification does not
verify eligible immigration status of a family member; and
(A) The family does not pursue INS appeal or informal hearing rights
as provided in this section; or
(B) INS appeal and informal hearing rights are pursued, but the
final appeal or hearing decisions are decided against the family member;
or
(iii) The responsible entity determines that a family member has
knowingly permitted another individual who is not eligible for
assistance to reside (on a permanent basis) in the public or assisted
housing unit of the family member. Such termination shall be for a
period of not less than 24 months. This provision does not apply to a
family if the ineligibility of the ineligible individual was considered
in calculating any proration of assistance provided for the family.
(2) Termination of assisted occupancy. For termination of assisted
occupancy, see paragraph (i) of this section.
(d) Notice of denial or termination of assistance. The notice of
denial or termination of assistance shall advise the family:
(1) That financial assistance will be denied or terminated, and
provide a brief explanation of the reasons for the proposed denial or
termination of assistance;
(2) That the family may be eligible for proration of assistance as
provided under Sec. 5.520;
(3) In the case of a tenant, the criteria and procedures for
obtaining relief under the provisions for preservation of families in
Secs. 5.514 and 5.518;
(4) That the family has a right to request an appeal to the INS of
the results of secondary verification of immigration status and to
submit additional documentation or a written explanation in support of
the appeal in accordance with the procedures of paragraph (e) of this
section;
(5) That the family has a right to request an informal hearing with
the responsible entity either upon completion of the INS appeal or in
lieu of the
[[Page 70]]
INS appeal as provided in paragraph (f) of this section;
(6) For applicants, the notice shall advise that assistance may not
be delayed until the conclusion of the INS appeal process, but
assistance may be delayed during the pendency of the informal hearing
process.
(e) Appeal to the INS. (1) Submission of request for appeal. Upon
receipt of notification by the responsible entity that INS secondary
verification failed to confirm eligible immigration status, the
responsible entity shall notify the family of the results of the INS
verification, and the family shall have 30 days from the date of the
responsible entity's notification, to request an appeal of the INS
results. The request for appeal shall be made by the family
communicating that request in writing directly to the INS. The family
must provide the responsible entity with a copy of the written request
for appeal and proof of mailing.
(2) Documentation to be submitted as part of appeal to INS. The
family shall forward to the designated INS office any additional
documentation or written explanation in support of the appeal. This
material must include a copy of the INS document verification request
form G-845S (used to process the secondary verification request) or such
other form specified by the INS, and a cover letter indicating that the
family is requesting an appeal of the INS immigration status
verification results.
(3) Decision by INS--(i) When decision will be issued. The INS will
issue to the family, with a copy to the responsible entity, a decision
within 30 days of its receipt of documentation concerning the family's
appeal of the verification of immigration status. If, for any reason,
the INS is unable to issue a decision within the 30 day time period, the
INS will inform the family and responsible entity of the reasons for the
delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the responsible entity receives a copy of the INS
decision, the responsible entity shall notify the family of its right to
request an informal hearing on the responsible entity's ineligibility
determination in accordance with the procedures of paragraph (f) of this
section.
(4) No delay, denial, reduction, or termination of assistance until
completion of INS appeal process; direct appeal to INS. Pending the
completion of the INS appeal under this section, assistance may not be
delayed, denied, reduced or terminated on the basis of immigration
status.
(f) Informal hearing. (1) When request for hearing is to be made.
After notification of the INS decision on appeal, or in lieu of request
of appeal to the INS, the family may request that the responsible entity
provide a hearing. This request must be made either within 30 days of
receipt of the notice described in paragraph (d) of this section, or
within 30 days of receipt of the INS appeal decision issued in
accordance with paragraph (e) of this section.
(2) Informal hearing procedures--(i) Tenants assisted under a
Section 8 covered program: For tenants assisted under a Section 8
covered program, the procedures for the hearing before the responsible
entity are set forth in:
(A) For Section 8 Moderate Rehabilitation assistance: 24 CFR part
882;
(B) For Section 8 tenant-based assistance: 24 CFR part 982; or
(C) For Section 8 project-based certificate program: 24 CFR part
983.
(ii) Tenants assisted under any other Section 8 covered program or a
Public Housing covered program: For tenants assisted under a Section 8
covered program not listed in paragraph (f)(3)(i) of this section or a
Public Housing covered program, the procedures for the hearing before
the responsible entity are set forth in 24 CFR part 966.
(iii) Families under Housing covered programs and applicants for
assistance under all covered programs. For all families under Housing
covered programs (applicants as well as tenants already receiving
assistance) and for applicants for assistance under all covered
programs, the procedures for the informal hearing before the responsible
entity are as follows:
(A) Hearing before an impartial individual. The family shall be
provided a hearing before any person(s) designated by the responsible
entity (including an officer or employee of the responsible entity),
other than a person who made
[[Page 71]]
or approved the decision under review, and other than a person who is a
subordinate of the person who made or approved the decision;
(B) Examination of evidence. The family shall be provided the
opportunity to examine and copy at the individual's expense, at a
reasonable time in advance of the hearing, any documents in the
possession of the responsible entity pertaining to the family's
eligibility status, or in the possession of the INS (as permitted by INS
requirements), including any records and regulations that may be
relevant to the hearing;
(C) Presentation of evidence and arguments in support of eligible
status. The family shall be provided the opportunity to present evidence
and arguments in support of eligible status. Evidence may be considered
without regard to admissibility under the rules of evidence applicable
to judicial proceedings;
(D) Controverting evidence of the responsible entity. The family
shall be provided the opportunity to controvert evidence relied upon by
the responsible entity and to confront and cross-examine all witnesses
on whose testimony or information the responsible entity relies;
(E) Representation. The family shall be entitled to be represented
by an attorney, or other designee, at the family's expense, and to have
such person make statements on the family's behalf;
(F) Interpretive services. The family shall be entitled to arrange
for an interpreter to attend the hearing, at the expense of the family,
or responsible entity, as may be agreed upon by the two parties to the
proceeding; and
(G) Hearing to be recorded. The family shall be entitled to have the
hearing recorded by audiotape (a transcript of the hearing may, but is
not required to, be provided by the responsible entity).
(3) Hearing decision. The responsible entity shall provide the
family with a written final decision, based solely on the facts
presented at the hearing, within 14 days of the date of the informal
hearing. The decision shall state the basis for the decision.
(g) Judicial relief. A decision against a family member, issued in
accordance with paragraphs (e) or (f) of this section, does not preclude
the family from exercising the right, that may otherwise be available,
to seek redress directly through judicial procedures.
(h) Retention of documents. The responsible entity shall retain for
a minimum of 5 years the following documents that may have been
submitted to the responsible entity by the family, or provided to the
responsible entity as part of the INS appeal or the informal hearing
process:
(1) The application for financial assistance;
(2) The form completed by the family for income reexamination;
(3) Photocopies of any original documents (front and back),
including original INS documents;
(4) The signed verification consent form;
(5) The INS verification results;
(6) The request for an INS appeal;
(7) The final INS determination;
(8) The request for an informal hearing; and
(9) The final informal hearing decision.
(i) Termination of assisted occupancy. (1) Under Housing covered
programs, and in the Section 8 covered programs other than the Section 8
Rental Certificate, Rental Voucher, and Moderate Rehabilitation
programs, assisted occupancy is terminated by:
(i) If permitted under the lease, the responsible entity notifying
the tenant that because of the termination of assisted occupancy the
tenant is required to pay the HUD-approved market rent for the dwelling
unit.
(ii) The responsible entity and tenant entering into a new lease
without financial assistance.
(iii) The responsible entity evicting the tenant. While the tenant
continues in occupancy of the unit, the responsible entity may continue
to receive assistance payments if action to terminate the tenancy under
an assisted lease is promptly initiated and diligently pursued, in
accordance with the terms of the lease, and if eviction of the tenant is
undertaken by judicial action pursuant to State and local law. Action by
the responsible entity to terminate the tenancy and to evict the
[[Page 72]]
tenant must be in accordance with applicable HUD regulations and other
HUD requirements. For any jurisdiction, HUD may prescribe a maximum
period during which assistance payments may be continued during eviction
proceedings and may prescribe other standards of reasonable diligence
for the prosecution of eviction proceedings.
(2) In the Section 8 Rental Certificate, Rental Voucher, and
Moderate Rehabilitation programs, assisted occupancy is terminated by
terminating assistance payments. (See provisions of this section
concerning termination of assistance.) The PHA shall not make any
additional assistance payments to the owner after the required
procedures specified in this section have been completed. In addition,
the PHA shall not approve a lease, enter into an assistance contract, or
process a portability move for the family after those procedures have
been completed.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25731, May 12, 1999]
Sec. 5.516 Availability of preservation assistance to mixed families and other families.
(a) Assistance available for tenant mixed families--(1) General.
Preservation assistance is available to tenant mixed families, following
completion of the appeals and informal hearing procedures provided in
Sec. 5.514. There are three types of preservation assistance:
(i) Continued assistance (see paragraph (a) of Sec. 5.518);
(ii) Temporary deferral of termination of assistance (see paragraph
(b) of Sec. 5.518); or
(iii) Prorated assistance (see Sec. 5.520, a mixed family must be
provided prorated assistance if the family so requests).
(2) Availability of assistance--(i) For Housing covered programs:
One of the three types of assistance described is available to tenant
mixed families assisted under a National Housing Act or 1965 HUD Act
covered program, depending upon the family's eligibility for such
assistance. Continued assistance must be provided to a mixed family that
meets the conditions for eligibility for continued assistance.
(ii) For Section 8 or Public Housing covered programs. One of the
three types of assistance described may be available to tenant mixed
families assisted under a Section 8 or Public Housing covered program.
(b) Assistance available for applicant mixed families. Prorated
assistance is also available for mixed families applying for assistance
as provided in Sec. 5.520.
(c) Assistance available to other families in occupancy. Temporary
deferral of termination of assistance may be available to families
receiving assistance under a Section 214 covered program on June 19,
1995, and who have no members with eligible immigration status, as set
forth in paragraphs (c)(1) and (2) of this section.
(1) For Housing covered programs: Temporary deferral of termination
of assistance is available to families assisted under a Housing covered
program.
(2) For Section 8 or Public Housing covered programs: The
responsible entity may make temporary deferral of termination of
assistance to families assisted under a Section 8 or Public Housing
covered program.
(d) Section 8 covered programs: Discretion afforded to provide
certain family preservation assistance--(1) Project owners. With respect
to assistance under a Section 8 Act covered program administered by a
project owner, HUD has the discretion to determine under what
circumstances families are to be provided one of the two statutory forms
of assistance for preservation of the family (continued assistance or
temporary deferral of assistance). HUD is exercising its discretion by
specifying the standards in this section under which a project owner
must provide one of these two types of assistance to a family. However,
project owners and PHAs must offer prorated assistance to eligible mixed
families.
(2) PHAs. The PHA, rather than HUD, has the discretion to determine
the circumstances under which a family will be offered one of the two
statutory forms of assistance (continued assistance or temporary
deferral of termination of assistance). The PHA must establish its own
policy and criteria to
[[Page 73]]
follow in making its decision. In establishing the criteria for granting
continued assistance or temporary deferral of termination of assistance,
the PHA must incorporate the statutory criteria, which are set forth in
paragraphs (a) and (b) of Sec. 5.518. However, the PHA must offer
prorated assistance to eligible families.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25732, May 12, 1999]
Sec. 5.518 Types of preservation assistance available to mixed families and other families.
(a) Continued assistance. (1) General. A mixed family may receive
continued housing assistance if all of the following conditions are met
(a mixed family assisted under a Housing covered program must be
provided continued assistance if the family meets the following
conditions):
(i) The family was receiving assistance under a Section 214 covered
program on June 19, 1995;
(ii) The family's head of household or spouse has eligible
immigration status as described in Sec. 5.506; and
(iii) The family does not include any person (who does not have
eligible immigration status) other than the head of household, any
spouse of the head of household, any parents of the head of household,
any parents of the spouse, or any children of the head of household or
spouse.
(2) Proration of continued assistance. A family entitled to
continued assistance before November 29, 1996 is entitled to continued
assistance as described in paragraph (a) of this section. A family
entitled to continued assistance after November 29, 1996 shall receive
prorated assistance as described in Sec. 5.520.
(b) Temporary deferral of termination of assistance--(1) Eligibility
for this type of assistance. If a mixed family qualifies for prorated
assistance (and does not qualify for continued assistance), but decides
not to accept prorated assistance, or if a family has no members with
eligible immigration status, the family may be eligible for temporary
deferral of termination of assistance if necessary to permit the family
additional time for the orderly transition of those family members with
ineligible status, and any other family members involved, to other
affordable housing. Other affordable housing is used in the context of
transition of an ineligible family from a rent level that reflects HUD
assistance to a rent level that is unassisted; the term refers to
housing that is not substandard, that is of appropriate size for the
family and that can be rented for an amount not exceeding the amount
that the family pays for rent, including utilities, plus 25 percent.
(2) Housing covered programs: Conditions for granting temporary
deferral of termination of assistance. The responsible entity shall
grant a temporary deferral of termination of assistance to a mixed
family if the family is assisted under a Housing covered program and one
of the following conditions is met:
(i) The family demonstrates that reasonable efforts to find other
affordable housing of appropriate size have been unsuccessful (for
purposes of this section, reasonable efforts include seeking information
from, and pursuing leads obtained from the State housing agency, the
city government, local newspapers, rental agencies and the owner);
(ii) The vacancy rate for affordable housing of appropriate size is
below five percent in the housing market for the area in which the
project is located; or
(iii) The consolidated plan, as described in 24 CFR part 91 and if
applicable to the covered program, indicates that the local
jurisdiction's housing market lacks sufficient affordable housing
opportunities for households having a size and income similar to the
family seeking the deferral.
(3) Time limit on deferral period. If temporary deferral of
termination of assistance is granted, the deferral period shall be for
an initial period not to exceed six months. The initial period may be
renewed for additional periods of six months, but the aggregate deferral
period for deferrals provided after November 29, 1996 shall not exceed a
period of eighteen months. The aggregate deferral period for deferrals
granted prior to November 29, 1996 shall not exceed 3 years. These time
periods do not
[[Page 74]]
apply to a family which includes a refugee under section 207 of the
Immigration and Nationality Act or an individual seeking asylum under
section 208 of that Act.
(4) Notification requirements for beginning of each deferral period.
At the beginning of each deferral period, the responsible entity must
inform the family of its ineligibility for financial assistance and
offer the family information concerning, and referrals to assist in
finding, other affordable housing.
(5) Determination of availability of affordable housing at end of
each deferral period. (i) Before the end of each deferral period, the
responsible entity must satisfy the applicable requirements of either
paragraph (b)(5)(i)(A) or (B) of this section. Specifically, the
responsible entity must:
(A) For Housing covered programs: Make a determination that one of
the two conditions specified in paragraph (b)(2) of this section
continues to be met (note: affordable housing will be determined to be
available if the vacancy rate is five percent or greater), the owner's
knowledge and the tenant's evidence indicate that other affordable
housing is available; or
(B) For Section 8 or Public Housing covered programs: Make a
determination of the availability of affordable housing of appropriate
size based on evidence of conditions which when taken together will
demonstrate an inadequate supply of affordable housing for the area in
which the project is located, the consolidated plan (if applicable, as
described in 24 CFR part 91), the responsible entity's own knowledge of
the availability of affordable housing, and on evidence of the tenant
family's efforts to locate such housing.
(ii) The responsible entity must also:
(A) Notify the tenant family in writing, at least 60 days in advance
of the expiration of the deferral period, that termination will be
deferred again (provided that the granting of another deferral will not
result in aggregate deferral periods that exceeds the maximum deferral
period). This time period does not apply to a family which includes a
refugee under section 207 of the Immigration and Nationality Act or an
individual seeking asylum under section 208 of that Act, and a
determination was made that other affordable housing is not available;
or
(B) Notify the tenant family in writing, at least 60 days in advance
of the expiration of the deferral period, that termination of financial
assistance will not be deferred because either granting another deferral
will result in aggregate deferral periods that exceed the maximum
deferral period (unless the family includes a refugee under section 207
of the Immigration and Nationality Act or an individual seeking asylum
under section 208 of that Act), or a determination has been made that
other affordable housing is available.
(c) Option to select proration of assistance at end of deferral
period. A family who is eligible for, and receives temporary deferral of
termination of assistance, may request, and the responsible entity shall
provide proration of assistance at the end of the deferral period if the
family has made a good faith effort during the deferral period to locate
other affordable housing.
(d) Notification of decision on family preservation assistance. A
responsible entity shall notify the family of its decision concerning
the family's qualification for family preservation assistance. If the
family is ineligible for family preservation assistance, the
notification shall state the reasons, which must be based on relevant
factors. For tenant families, the notice also shall inform the family of
any applicable appeal rights.
[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996;
64 FR 25732, May 12, 1999]
Sec. 5.520 Proration of assistance.
(a) Applicability. This section applies to a mixed family other than
a family receiving continued assistance, or other than a family who is
eligible for and requests and receives temporary deferral of termination
of assistance. An eligible mixed family who requests prorated assistance
must be provided prorated assistance.
(b) Method of prorating assistance for Housing covered programs--(1)
Proration under Rent Supplement Program. If the household participates
in the Rent Supplement Program, the rent supplement paid on the
household's behalf
[[Page 75]]
shall be the rent supplement the household would otherwise be entitled
to, multiplied by a fraction, the denominator of which is the number of
people in the household and the numerator of which is the number of
eligible persons in the household;
(2) Proration under Section 235 Program. If the household
participates in the Section 235 Program, the interest reduction payments
paid on the household's behalf shall be the payments the household would
otherwise be entitled to, multiplied by a fraction the denominator of
which is the number of people in the household and the numerator of
which is the number of eligible persons in the household;
(3) Proration under Section 236 Program without the benefit of
additional assistance. If the household participates in the Section 236
Program without the benefit of any additional assistance, the
household's rent shall be increased above the rent the household would
otherwise pay by an amount equal to the difference between the market
rate rent for the unit and the rent the household would otherwise pay
multiplied by a fraction the denominator of which is the number of
people in the household and the numerator of which is the number of
ineligible persons in the household;
(4) Proration under Section 236 Program with the benefit of
additional assistance. If the household participates in the Section 236
Program with the benefit of additional assistance under the rent
supplement, rental assistance payment or Section 8 programs, the
household's rent shall be increased above the rent the household would
otherwise pay by:
(i) An amount equal to the difference between the market rate rent
for the unit and the basic rent for the unit multiplied by a fraction,
the denominator of which is the number of people in the household, and
the numerator of which is the number of ineligible persons in the
household, plus;
(ii) An amount equal to the rent supplement, housing assistance
payment or rental assistance payment the household would otherwise be
entitled to multiplied by a fraction, the denominator of which is the
number of people in the household and the numerator of which is the
number of ineligible persons in the household.
(c) Method of prorating assistance for Section 8 covered programs--
(1) Section 8 assistance other than assistance provided for a tenancy
under the Section 8 Rental Voucher Program or for an over-FMR tenancy in
the Section 8 Rental Certificate Program. For Section 8 assistance other
than assistance for a tenancy under the voucher program or an over-FMR
tenancy under the certificate program, the PHA must prorate the family's
assistance as follows:
(i) Step 1. Determine gross rent for the unit. (Gross rent is
contract rent plus any allowance for tenant paid utilities).
(ii) Step 2. Determine total tenant payment in accordance with
section 5.613(a). (Annual income includes income of all family members,
including any family member who has not established eligible immigration
status.)
(iii) Step 3. Subtract amount determined in paragraph (c)(1)(ii),
(Step 2), from amount determined in paragraph (c)(1)(i), (Step 1).
(iv) Step 4. Multiply the amount determined in paragraph
(c)(1)(iii), (Step 3) by a fraction for which:
(A) The numerator is the number of family members who have
established eligible immigration status; and
(B) The denominator is the total number of family members.
(v) Prorated housing assistance. The amount determined in paragraph
(c)(1)(iv), (Step 4) is the prorated housing assistance payment for a
mixed family.
(vi) No effect on contract rent. Proration of the housing assistance
payment does not affect contract rent to the owner. The family must pay
as rent the portion of contract rent not covered by the prorated housing
assistance payment.
(2) Assistance for a Section 8 voucher tenancy or over-FMR tenancy.
For a tenancy under the voucher program or for an over-FMR tenancy under
the certificate program, the PHA must prorate the family's assistance as
follows:
(i) Step 1. Determine the amount of the pre-proration housing
assistance payment. (Annual income includes income of all family
members, including
[[Page 76]]
any family member who has not established eligible immigration status.)
(ii) Step 2. Multiply the amount determined in paragraph (c)(2)(i),
(Step 1) by a fraction for which:
(A) The numerator is the number of family members who have
established eligible immigration status; and
(B) The denominator is the total number of family members.
(iii) Prorated housing assistance. The amount determined in
paragraph (c)(2)(ii), (Step 2) is the prorated housing assistance
payment for a mixed family.
(iv) No effect on rent to owner. Proration of the housing assistance
payment does not affect rent to owner. The family must pay the portion
of rent to owner not covered by the prorated housing assistance payment.
(d) Method of prorating assistance for Public Housing covered
programs. The PHA shall prorate the family's assistance by:
(1) Step 1. Determining total tenant payment in accordance with 24
CFR 913.107(a). (Annual income includes income of all family members,
including any family member who has not established eligible immigration
status.)
(2) Step 2. Subtracting the total tenant payment from a HUD-supplied
``public housing maximum rent'' applicable to the unit or the PHA. (This
``maximum rent'' shall be determined by HUD using the 95th percentile
rent for the PHA.) The result is the maximum subsidy for which the
family could qualify if all members were eligible (``family maximum
subsidy'').
(3) Step 3. Dividing the family maximum subsidy by the number of
persons in the family (all persons) to determine the maximum subsidy per
each family member who has citizenship or eligible immigration status
(``eligible family member''). The subsidy per eligible family member is
the ``member maximum subsidy''.
(4) Step 4. Multiplying the member maximum subsidy by the number of
family members who have citizenship or eligible immigration status
(``eligible family members'').
(5) Step 5. The product of steps 1 through 4, as set forth in
paragraph (d)(2) of this section is the amount of subsidy for which the
family is eligible (``eligible subsidy''). The family's rent is the
``public housing maximum rent'' minus the amount of the eligible
subsidy.
[61 FR 5202, Feb. 9, 1996, as amended at 63 FR 23853, Apr. 30, 1998; 64
FR 13056, Mar. 16, 1999]
Sec. 5.522 Prohibition of assistance to noncitizen students.
(a) General. The provisions of Secs. 5.516 and 5.518 permitting
continued assistance or temporary deferral of termination of assistance
for certain families do not apply to any person who is determined to be
a noncitizen student as in paragraph (c)(2)(A) of Section 214 (42 U.S.C.
1436a(c)(2)(A)). The family of a noncitizen student may be eligible for
prorated assistance, as provided in paragraph (b)(2) of this section.
(b) Family of noncitizen students. (1) The prohibition on providing
assistance to a noncitizen student as described in paragraph (a) of this
section extends to the noncitizen spouse of the noncitizen student and
minor children accompanying the student or following to join the
student.
(2) The prohibition on providing assistance to a noncitizen student
does not extend to the citizen spouse of the noncitizen student and the
children of the citizen spouse and noncitizen student.
Sec. 5.524 Compliance with nondiscrimination requirements.
The responsible entity shall administer the restrictions on use of
assisted housing by noncitizens with ineligible immigration status
imposed by this part in conformity with all applicable nondiscrimination
and equal opportunity requirements, including, but not limited to, title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-5) and the
implementing regulations in 24 CFR part 1, section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794) and the implementing
regulations in 24 CFR part 8, the Fair Housing Act (42 U.S.C. 3601-3619)
and the implementing regulations in 24 CFR part 100.
[[Page 77]]
Sec. 5.526 Protection from liability for responsible entities and State and local government agencies and officials.
(a) Protection from liability for responsible entities. Responsible
entities are protected from liability as set forth in Section 214(e) (42
U.S.C 1436a(e)).
(b) Protection from liability for State and local government
agencies and officials. State and local government agencies and
officials shall not be liable for the design or implementation of the
verification system described in Sec. 5.512, as long as the
implementation by the State and local government agency or official is
in accordance with prescribed HUD rules and requirements.
[64 FR 25732, May 12, 1999]
Sec. 5.528 Liability of ineligible tenants for reimbursement of benefits.
Where a tenant has received the benefit of HUD financial assistance
to which the tenant was not entitled because the tenant intentionally
misrepresented eligible status, the ineligible tenant is responsible for
reimbursing HUD for the assistance improperly paid. If the amount of the
assistance is substantial, the responsible entity is encouraged to refer
the case to the HUD Inspector General's office for further
investigation. Possible criminal prosecution may follow based on the
False Statements Act (18 U.S.C. 1001 and 1010).
Subpart F--Section 8 and Public Housing, and Other HUD Assisted Housing
Serving Persons with Disabilities: Family Income and Family Payment;
Occupancy Requirements for Section 8 Project-Based Assistance
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, and 3535(d).
Source: 61 FR 54498, Oct. 18, 1996, unless otherwise noted.
Sec. 5.601 Purpose and applicability.
This subpart states HUD requirements on the following subjects:
(a) Determining annual and adjusted income of families who apply for
or receive assistance in the Section 8 (tenant-based and project-based)
and public housing programs;
(b) Determining payments by and utility reimbursements to families
assisted in these programs;
(c) Additional occupancy requirements that apply to the Section 8
project-based assistance programs. These additional requirements
concern:
(1) Income-eligibility and income-targeting when a Section 8 owner
admits families to a Section 8 project or unit;
(2) Owner selection preferences; and
(3) Owner reexamination of family income and composition;
(d) Determining adjusted income, as provided in Sec. 5.611(a) and
(b), for families who apply for or receive assistance under the
following programs: HOME Investment Partnerships Program (24 CFR part
92); Rent Supplement Payments Program (24 CFR part 200, subpart W);
Rental Assistance Payments Program (24 CFR part 236, subpart D); Housing
Opportunities for Persons with AIDS (24 CFR part 574); Shelter Plus Care
Program (24 CFR part 582); Supportive Housing Program (McKinney Act
Homeless Assistance) (24 CFR part 583); Section 202 Supportive Housing
Program for the Elderly (24 CFR 891, subpart B); Section 202 Direct
Loans for Housing for the Elderly and Persons with Disabilities (24 CFR
part 891, subpart E) and the Section 811 Supportive Housing for Persons
with Disabilities (24 CFR part 891, subpart C). Unless specified in the
regulations for each of the programs listed in paragraph (d) of this
section or in another regulatory section of this part 5, subpart F, the
regulations in part 5, subpart F, generally are not applicable to these
programs; and
(e) Determining earned income disregard for persons with
disabilities, as provided in Sec. 5.617, for the following programs:
HOME Investment Partnerships Program (24 CFR part 92); Housing
Opportunities for Persons with AIDS (24 CFR part 574); Supportive
Housing Program (McKinney Act Homeless Assistance) (24 CFR part 583);
and the Housing Choice Voucher Program (24 CFR part 982).
[66 FR 6222, Jan. 19, 2001]
[[Page 78]]
Sec. 5.603 Definitions.
As used in this subpart:
(a) Terms found elsewhere in part 5--(1) Subpart A. The terms 1937
Act, elderly person, public housing, public housing agency (PHA),
responsible entity and Section 8 are defined in Sec. 5.100.
(2) Subpart D. The terms ``disabled family'', ``elderly family'',
``family'', ``live-in aide'', and ``person with disabilities'' are
defined in Sec. 5.403.
(b) The following terms shall have the meanings set forth below:
Adjusted income. See Sec. 5.611.
Annual income. See Sec. 5.609.
Child care expenses. Amounts anticipated to be paid by the family
for the care of children under 13 years of age during the period for
which annual income is computed, but only where such care is necessary
to enable a family member to actively seek employment, be gainfully
employed, or to further his or her education and only to the extent such
amounts are not reimbursed. The amount deducted shall reflect reasonable
charges for child care. In the case of child care necessary to permit
employment, the amount deducted shall not exceed the amount of
employment income that is included in annual income.
Dependent. A member of the family (except foster children and foster
adults) other than the family head or spouse, who is under 18 years of
age, or is a person with a disability, or is a full-time student.
Disability assistance expenses. Reasonable expenses that are
anticipated, during the period for which annual income is computed, for
attendant care and auxiliary apparatus for a disabled family member and
that are necessary to enable a family member (including the disabled
member) to be employed, provided that the expenses are neither paid to a
member of the family nor reimbursed by an outside source.
Economic self-sufficiency program. Any program designed to
encourage, assist, train, or facilitate the economic independence of
HUD-assisted families or to provide work for such families. These
programs include programs for job training, employment counseling, work
placement, basic skills training, education, English proficiency,
workfare, financial or household management, apprenticeship, and any
program necessary to ready a participant for work (including a substance
abuse or mental health treatment program), or other work activities.
Extremely low income family. A family whose annual income does not
exceed 30 percent of the median income for the area, as determined by
HUD, with adjustments for smaller and larger families, except that HUD
may establish income ceilings higher or lower than 30 percent of the
median income for the area if HUD finds that such variations are
necessary because of unusually high or low family incomes.
Full-time student. A person who is attending school or vocational
training on a full-time basis.
Imputed welfare income. See Sec. 5.615.
Low income family. A family whose annual income does not exceed 80
percent of the median income for the area, as determined by HUD with
adjustments for smaller and larger families, except that HUD may
establish income ceilings higher or lower than 80 percent of the median
income for the area on the basis of HUD's findings that such variations
are necessary because of unusually high or low family incomes.
Medical expenses. Medical expenses, including medical insurance
premiums, that are anticipated during the period for which annual income
is computed, and that are not covered by insurance.
Monthly adjusted income. One twelfth of adjusted income.
Monthly income. One twelfth of annual income.
Net family assets. (1) Net cash value after deducting reasonable
costs that would be incurred in disposing of real property, savings,
stocks, bonds, and other forms of capital investment, excluding
interests in Indian trust land and excluding equity accounts in HUD
homeownership programs. The value of necessary items of personal
property such as furniture and automobiles shall be excluded.
(2) In cases where a trust fund has been established and the trust
is not revocable by, or under the control of, any member of the family
or household, the value of the trust fund will not be considered an
asset so long as the fund continues to be held in trust. Any income
distributed from the trust
[[Page 79]]
fund shall be counted when determining annual income under Sec. 5.609.
(3) In determining net family assets, PHAs or owners, as applicable,
shall include the value of any business or family assets disposed of by
an applicant or tenant for less than fair market value (including a
disposition in trust, but not in a foreclosure or bankruptcy sale)
during the two years preceding the date of application for the program
or reexamination, as applicable, in excess of the consideration received
therefor. In the case of a disposition as part of a separation or
divorce settlement, the disposition will not be considered to be for
less than fair market value if the applicant or tenant receives
important consideration not measurable in dollar terms.
(4) For purposes of determining annual income under Sec. 5.609, the
term ``net family assets'' does not include the value of a home
currently being purchased with assistance under part 982, subpart M of
this title. This exclusion is limited to the first 10 years after the
purchase date of the home.
Owner has the meaning provided in the relevant program regulations.
As used in this subpart, where appropriate, the term ``owner'' shall
also include a ``borrower'' as defined in part 891 of this title.
Responsible entity. For Sec. 5.611, in addition to the definition of
``responsible entity'' in Sec. 5.100, and for Sec. 5.617, in addition to
only that part of the definition of ``responsible entity'' in Sec. 5.100
which addresses the Section 8 program covered by Sec. 5.617 (public
housing is not covered by Sec. 5.617), ``responsible entity'' means:
(1) For the HOME Investment Partnerships Program, the participating
jurisdiction, as defined in 24 CFR 92.2;
(2) For the Rent Supplement Payments Program, the owner of the
multifamily project;
(3) For the Rental Assistance Payments Program, the owner of the
Section 236 project;
(4) For the Housing Opportunities for Persons with AIDS (HOPWA)
program, the applicable ``State'' or ``unit of general local
government'' or ``nonprofit organization'' as these terms are defined in
24 CFR 574.3, that administers the HOPWA Program;
(5) For the Shelter Plus Care Program, the ``Recipient'' as defined
in 24 CFR 582.5;
(6) For the Supportive Housing Program, the ``recipient'' as defined
in 24 CFR 583.5;
(7) For the Section 202 Supportive Housing Program for the Elderly,
the ``Owner'' as defined in 24 CFR 891.205;
(8) For the Section 202 Direct Loans for Housing for the Elderly and
Persons with Disabilities), the ``Borrower'' as defined in 24 CFR
891.505; and
(9) For the Section 811 Supportive Housing Program for Persons with
Disabilities, the ``owner'' as defined in 24 CFR 891.305.
Tenant rent. The amount payable monthly by the family as rent to the
unit owner (Section 8 owner or PHA in public housing). (This term is not
used in the Section 8 voucher program.)
Total tenant payment. See Sec. 5.613.
Utility allowance. If the cost of utilities (except telephone) and
other housing services for an assisted unit is not included in the
tenant rent but is the responsibility of the family occupying the unit,
an amount equal to the estimate made or approved by a PHA or HUD of the
monthly cost of a reasonable consumption of such utilities and other
services for the unit by an energy-conservative household of modest
circumstances consistent with the requirements of a safe, sanitary, and
healthful living environment.
Utility reimbursement. The amount, if any, by which the utility
allowance for a unit, if applicable, exceeds the total tenant payment
for the family occupying the unit. (This definition is not used in the
Section 8 voucher program, or for a public housing family that is paying
a flat rent.)
Very low income family. A family whose annual income does not exceed
50 percent of the median family income for the area, as determined by
HUD with adjustments for smaller and larger families, except that HUD
may establish income ceilings higher or lower than 50 percent of the
median income for the area if HUD finds that such variations are
necessary because of unusually high or low family incomes.
Welfare assistance. Welfare or other payments to families or
individuals, based on need, that are made under
[[Page 80]]
programs funded, separately or jointly, by Federal, State or local
governments (including assistance provided under the Temporary
Assistance for Needy Families (TANF) program, as that term is defined
under the implementing regulations issued by the Department of Health
and Human Services at 45 CFR 260.31).
Work activities. See definition at section 407(d) of the Social
Security Act (42 U.S.C. 607(d)).
[61 FR 54498, Oct. 18, 1996, as amended at 65 FR 16716, Mar. 29, 2000;
65 FR 55161, Sept. 12, 2000; 66 FR 6223, Jan. 19, 2001; 67 FR 47432,
July 18, 2002]
Family Income
Sec. 5.609 Annual income.
(a) Annual income means all amounts, monetary or not, which:
(1) Go to, or on behalf of, the family head or spouse (even if
temporarily absent) or to any other family member; or
(2) Are anticipated to be received from a source outside the family
during the 12-month period following admission or annual reexamination
effective date; and
(3) Which are not specifically excluded in paragraph (c) of this
section.
(4) Annual income also means amounts derived (during the 12-month
period) from assets to which any member of the family has access.
(b) Annual income includes, but is not limited to:
(1) The full amount, before any payroll deductions, of wages and
salaries, overtime pay, commissions, fees, tips and bonuses, and other
compensation for personal services;
(2) The net income from the operation of a business or profession.
Expenditures for business expansion or amortization of capital
indebtedness shall not be used as deductions in determining net income.
An allowance for depreciation of assets used in a business or profession
may be deducted, based on straight line depreciation, as provided in
Internal Revenue Service regulations. Any withdrawal of cash or assets
from the operation of a business or profession will be included in
income, except to the extent the withdrawal is reimbursement of cash or
assets invested in the operation by the family;
(3) Interest, dividends, and other net income of any kind from real
or personal property. Expenditures for amortization of capital
indebtedness shall not be used as deductions in determining net income.
An allowance for depreciation is permitted only as authorized in
paragraph (b)(2) of this section. Any withdrawal of cash or assets from
an investment will be included in income, except to the extent the
withdrawal is reimbursement of cash or assets invested by the family.
Where the family has net family assets in excess of $5,000, annual
income shall include the greater of the actual income derived from all
net family assets or a percentage of the value of such assets based on
the current passbook savings rate, as determined by HUD;
(4) The full amount of periodic amounts received from Social
Security, annuities, insurance policies, retirement funds, pensions,
disability or death benefits, and other similar types of periodic
receipts, including a lump-sum amount or prospective monthly amounts for
the delayed start of a periodic amount (except as provided in paragraph
(c)(14) of this section);
(5) Payments in lieu of earnings, such as unemployment and
disability compensation, worker's compensation and severance pay (except
as provided in paragraph (c)(3) of this section);
(6) Welfare assistance payments. (i) Welfare assistance payments
made under the Temporary Assistance for Needy Families (TANF) program
are included in annual income only to the extent such payments:
(A) Qualify as assistance under the TANF program definition at 45
CFR 260.31; and
(B) Are not otherwise excluded under paragraph (c) of this section.
(ii) If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the
actual cost of shelter and utilities, the amount of welfare assistance
income to be included as income shall consist of:
[[Page 81]]
(A) The amount of the allowance or grant exclusive of the amount
specifically designated for shelter or utilities; plus
(B) The maximum amount that the welfare assistance agency could in
fact allow the family for shelter and utilities. If the family's welfare
assistance is ratably reduced from the standard of need by applying a
percentage, the amount calculated under this paragraph shall be the
amount resulting from one application of the percentage.
(7) Periodic and determinable allowances, such as alimony and child
support payments, and regular contributions or gifts received from
organizations or from persons not residing in the dwelling;
(8) All regular pay, special pay and allowances of a member of the
Armed Forces (except as provided in paragraph (c)(7) of this section).
(c) Annual income does not include the following:
(1) Income from employment of children (including foster children)
under the age of 18 years;
(2) Payments received for the care of foster children or foster
adults (usually persons with disabilities, unrelated to the tenant
family, who are unable to live alone);
(3) Lump-sum additions to family assets, such as inheritances,
insurance payments (including payments under health and accident
insurance and worker's compensation), capital gains and settlement for
personal or property losses (except as provided in paragraph (b)(5) of
this section);
(4) Amounts received by the family that are specifically for, or in
reimbursement of, the cost of medical expenses for any family member;
(5) Income of a live-in aide, as defined in Sec. 5.403;
(6) The full amount of student financial assistance paid directly to
the student or to the educational institution;
(7) The special pay to a family member serving in the Armed Forces
who is exposed to hostile fire;
(8)(i) Amounts received under training programs funded by HUD;
(ii) Amounts received by a person with a disability that are
disregarded for a limited time for purposes of Supplemental Security
Income eligibility and benefits because they are set aside for use under
a Plan to Attain Self-Sufficiency (PASS);
(iii) Amounts received by a participant in other publicly assisted
programs which are specifically for or in reimbursement of out-of-pocket
expenses incurred (special equipment, clothing, transportation, child
care, etc.) and which are made solely to allow participation in a
specific program;
(iv) Amounts received under a resident service stipend. A resident
service stipend is a modest amount (not to exceed $200 per month)
received by a resident for performing a service for the PHA or owner, on
a part-time basis, that enhances the quality of life in the development.
Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, resident initiatives coordination, and
serving as a member of the PHA's governing board. No resident may
receive more than one such stipend during the same period of time;
(v) Incremental earnings and benefits resulting to any family member
from participation in qualifying State or local employment training
programs (including training programs not affiliated with a local
government) and training of a family member as resident management
staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives,
and are excluded only for the period during which the family member
participates in the employment training program;
(9) Temporary, nonrecurring or sporadic income (including gifts);
(10) Reparation payments paid by a foreign government pursuant to
claims filed under the laws of that government by persons who were
persecuted during the Nazi era;
(11) Earnings in excess of $480 for each full-time student 18 years
old or older (excluding the head of household and spouse);
(12) Adoption assistance payments in excess of $480 per adopted
child;
(13) [Reserved]
(14) Deferred periodic amounts from supplemental security income and
social security benefits that are received
[[Page 82]]
in a lump sum amount or in prospective monthly amounts.
(15) Amounts received by the family in the form of refunds or
rebates under State or local law for property taxes paid on the dwelling
unit;
(16) Amounts paid by a State agency to a family with a member who
has a developmental disability and is living at home to offset the cost
of services and equipment needed to keep the developmentally disabled
family member at home; or
(17) Amounts specifically excluded by any other Federal statute from
consideration as income for purposes of determining eligibility or
benefits under a category of assistance programs that includes
assistance under any program to which the exclusions set forth in 24 CFR
5.609(c) apply. A notice will be published in the Federal Register and
distributed to PHAs and housing owners identifying the benefits that
qualify for this exclusion. Updates will be published and distributed
when necessary.
(d) Annualization of income. If it is not feasible to anticipate a
level of income over a 12-month period (e.g., seasonal or cyclic
income), or the PHA believes that past income is the best available
indicator of expected future income, the PHA may annualize the income
anticipated for a shorter period, subject to a redetermination at the
end of the shorter period.
[61 FR 54498, Oct, 18, 1996, as amended at 65 FR 16716, Mar. 29, 2000;
67 FR 47432, July 18, 2002]
Sec. 5.611 Adjusted income.
Adjusted income means annual income (as determined by the
responsible entity, defined in Sec. 5.100 and Sec. 5.603) of the members
of the family residing or intending to reside in the dwelling unit,
after making the following deductions:
(a) Mandatory deductions. In determining adjusted income, the
responsible entity must deduct the following amounts from annual income:
(1) $480 for each dependent;
(2) $400 for any elderly family or disabled family;
(3) The sum of the following, to the extent the sum exceeds three
percent of annual income:
(i) Unreimbursed medical expenses of any elderly family or disabled
family; and
(ii) Unreimbursed reasonable attendant care and auxiliary apparatus
expenses for each member of the family who is a person with
disabilities, to the extent necessary to enable any member of the family
(including the member who is a person with disabilities) to be employed.
This deduction may not exceed the earned income received by family
members who are 18 years of age or older and who are able to work
because of such attendant care or auxiliary apparatus; and
(4) Any reasonable child care expenses necessary to enable a member
of the family to be employed or to further his or her education.
(b) Additional deductions. (1) For public housing, a PHA may adopt
additional deductions from annual income. The PHA must establish a
written policy for such deductions.
(2) For the HUD programs listed in Sec. 5.601(d), the responsible
entity shall calculate such other deductions as required and permitted
by the applicable program regulations.
[66 FR 6223, Jan. 19, 2001]
Sec. 5.613 Public housing program and Section 8 tenant-based assistance program: PHA cooperation with welfare agency.
(a) This section applies to the public housing program and the
Section 8 tenant-based assistance program.
(b) The PHA must make best efforts to enter into cooperation
agreements with welfare agencies under which such agencies agree:
(1) To target public assistance, benefits and services to families
receiving assistance in the public housing program and the Section 8
tenant-based assistance program to achieve self-sufficiency;
(2) To provide written verification to the PHA concerning welfare
benefits for families applying for or receiving assistance in these
housing assistance programs.
[65 FR 16717, Mar. 29, 2000]
[[Page 83]]
Sec. 5.615 Public housing program and Section 8 tenant-based assistance program: How welfare benefit reduction affects family income.
(a) Applicability. This section applies to covered families who
reside in public housing (part 960 of this title) or receive Section 8
tenant-based assistance (part 982 of this title).
(b) Definitions. The following definitions apply for purposes of
this section:
Covered families. Families who receive welfare assistance or other
public assistance benefits (``welfare benefits'') from a State or other
public agency (``welfare agency'') under a program for which Federal,
State, or local law requires that a member of the family must
participate in an economic self-sufficiency program as a condition for
such assistance.
Economic self-sufficiency program. See definition at Sec. 5.603.
Imputed welfare income. The amount of annual income not actually
received by a family, as a result of a specified welfare benefit
reduction, that is nonetheless included in the family's annual income
for purposes of determining rent.
Specified welfare benefit reduction.
(1) A reduction of welfare benefits by the welfare agency, in whole
or in part, for a family member, as determined by the welfare agency,
because of fraud by a family member in connection with the welfare
program; or because of welfare agency sanction against a family member
for noncompliance with a welfare agency requirement to participate in an
economic self-sufficiency program.
(2) ``Specified welfare benefit reduction'' does not include a
reduction or termination of welfare benefits by the welfare agency:
(i) at expiration of a lifetime or other time limit on the payment
of welfare benefits;
(ii) because a family member is not able to obtain employment, even
though the family member has complied with welfare agency economic self-
sufficiency or work activities requirements; or
(iii) because a family member has not complied with other welfare
agency requirements.
(c) Imputed welfare income.
(1) A family's annual income includes the amount of imputed welfare
income (because of a specified welfare benefits reduction, as specified
in notice to the PHA by the welfare agency), plus the total amount of
other annual income as determined in accordance with Sec. 5.609.
(2) At the request of the PHA, the welfare agency will inform the
PHA in writing of the amount and term of any specified welfare benefit
reduction for a family member, and the reason for such reduction, and
will also inform the PHA of any subsequent changes in the term or amount
of such specified welfare benefit reduction. The PHA will use this
information to determine the amount of imputed welfare income for a
family.
(3) A family's annual income includes imputed welfare income in
family annual income, as determined at the PHA's interim or regular
reexamination of family income and composition, during the term of the
welfare benefits reduction (as specified in information provided to the
PHA by the welfare agency).
(4) The amount of the imputed welfare income is offset by the amount
of additional income a family receives that commences after the time the
sanction was imposed. When such additional income from other sources is
at least equal to the imputed welfare income, the imputed welfare income
is reduced to zero.
(5) The PHA may not include imputed welfare income in annual income
if the family was not an assisted resident at the time of sanction.
(d) Review of PHA decision. (1) Public housing. If a public housing
tenant claims that the PHA has not correctly calculated the amount of
imputed welfare income in accordance with HUD requirements, and if the
PHA denies the family's request to modify such amount, the PHA shall
give the tenant written notice of such denial, with a brief explanation
of the basis for the PHA determination of the amount of imputed welfare
income. The PHA notice shall also state that if the tenant does not
agree with the PHA determination, the tenant may request a grievance
hearing in accordance with
[[Page 84]]
part 966, subpart B of this title to review the PHA determination. The
tenant is not required to pay an escrow deposit pursuant to
Sec. 966.55(e) for the portion of tenant rent attributable to the
imputed welfare income in order to obtain a grievance hearing on the PHA
determination.
(2) Section 8 participant. A participant in the Section 8 tenant-
based assistance program may request an informal hearing, in accordance
with Sec. 982.555 of this title, to review the PHA determination of the
amount of imputed welfare income that must be included in the family's
annual income in accordance with this section. If the family claims that
such amount is not correctly calculated in accordance with HUD
requirements, and if the PHA denies the family's request to modify such
amount, the PHA shall give the family written notice of such denial,
with a brief explanation of the basis for the PHA determination of the
amount of imputed welfare income. Such notice shall also state that if
the family does not agree with the PHA determination, the family may
request an informal hearing on the determination under the PHA hearing
procedure.
(e) PHA relation with welfare agency. (1) The PHA must ask welfare
agencies to inform the PHA of any specified welfare benefits reduction
for a family member, the reason for such reduction, the term of any such
reduction, and any subsequent welfare agency determination affecting the
amount or term of a specified welfare benefits reduction. If the welfare
agency determines a specified welfare benefits reduction for a family
member, and gives the PHA written notice of such reduction, the family's
annual incomes shall include the imputed welfare income because of the
specified welfare benefits reduction.
(2) The PHA is responsible for determining the amount of imputed
welfare income that is included in the family's annual income as a
result of a specified welfare benefits reduction as determined by the
welfare agency, and specified in the notice by the welfare agency to the
PHA. However, the PHA is not responsible for determining whether a
reduction of welfare benefits by the welfare agency was correctly
determined by the welfare agency in accordance with welfare program
requirements and procedures, nor for providing the opportunity for
review or hearing on such welfare agency determinations.
(3) Such welfare agency determinations are the responsibility of the
welfare agency, and the family may seek appeal of such determinations
through the welfare agency's normal due process procedures. The PHA
shall be entitled to rely on the welfare agency notice to the PHA of the
welfare agency's determination of a specified welfare benefits
reduction.
[65 FR 16717, Mar. 29, 2000]
Sec. 5.617 Self-sufficiency incentives for persons with disabilities--Disallowance of increase in annual income.
(a) Applicable programs. The disallowance of increase in annual
income provided by this section is applicable only to the following
programs: HOME Investment Partnerships Program (24 CFR part 92); Housing
Opportunities for Persons with AIDS (24 CFR part 574); Supportive
Housing Program (24 CFR part 583); and the Housing Choice Voucher
Program (24 CFR part 982).
(b) Definitions. The following definitions apply for purposes of
this section.
Disallowance. Exclusion from annual income.
Previously unemployed includes a person with disabilities who has
earned, in the twelve months previous to employment, no more than would
be received for 10 hours of work per week for 50 weeks at the
established minimum wage.
Qualified family. A family residing in housing assisted under one of
the programs listed in paragraph (a) of this section or receiving
tenant-based rental assistance under one of the programs listed in
paragraph (a) of this section.
(1) Whose annual income increases as a result of employment of a
family member who is a person with disabilities and who was previously
unemployed for one or more years prior to employment;
(2) Whose annual income increases as a result of increased earnings
by a family member who is a person with disabilities during
participation in any
[[Page 85]]
economic self-sufficiency or other job training program; or
(3) Whose annual income increases, as a result of new employment or
increased earnings of a family member who is a person with disabilities,
during or within six months after receiving assistance, benefits or
services under any state program for temporary assistance for needy
families funded under Part A of Title IV of the Social Security Act, as
determined by the responsible entity in consultation with the local
agencies administering temporary assistance for needy families (TANF)
and Welfare-to-Work (WTW) programs. The TANF program is not limited to
monthly income maintenance, but also includes such benefits and services
as one-time payments, wage subsidies and transportation assistance--
provided that the total amount over a six-month period is at least $500.
(c) Disallowance of increase in annual income--(1) Initial twelve
month exclusion. During the cumulative twelve month period beginning on
the date a member who is a person with disabilities of a qualified
family is first employed or the family first experiences an increase in
annual income attributable to employment, the responsible entity must
exclude from annual income (as defined in the regulations governing the
applicable program listed in paragraph (a) of this section) of a
qualified family any increase in income of the family member who is a
person with disabilities as a result of employment over prior income of
that family member.
(2) Second twelve month exclusion and phase-in. During the second
cumulative twelve month period after the date a member who is a person
with disabilities of a qualified family is first employed or the family
first experiences an increase in annual income attributable to
employment, the responsible entity must exclude from annual income of a
qualified family fifty percent of any increase in income of such family
member as a result of employment over income of that family member prior
to the beginning of such employment.
(3) Maximum four year disallowance. The disallowance of increased
income of an individual family member who is a person with disabilities
as provided in paragraph (c)(1) or (c)(2) is limited to a lifetime 48
month period. The disallowance only applies for a maximum of twelve
months for disallowance under paragraph (c)(1) and a maximum of twelve
months for disallowance under paragraph (c)(2), during the 48 month
period starting from the initial exclusion under paragraph (c)(1) of
this section.
(d) Inapplicability to admission. The disallowance of increases in
income as a result of employment of persons with disabilities under this
section does not apply for purposes of admission to the program
(including the determination of income eligibility or any income
targeting that may be applicable).
[66 FR 6223, Jan. 19, 2001, as amended at 67 FR 6820, Feb. 13, 2002]
Family Payment
Sec. 5.628 Total tenant payment.
(a) Determining total tenant payment (TTP). Total tenant payment is
the highest of the following amounts, rounded to the nearest dollar:
(1) 30 percent of the family's monthly adjusted income;
(2) 10 percent of the family's monthly income;
(3) If the family is receiving payments for welfare assistance from
a public agency and a part of those payments, adjusted in accordance
with the family's actual housing costs, is specifically designated by
such agency to meet the family's housing costs, the portion of those
payments which is so designated; or
(4) The minimum rent, as determined in accordance with Sec. 5.630.
(b) Determining TTP if family's welfare assistance is ratably
reduced. If the family's welfare assistance is ratably reduced from the
standard of need by applying a percentage, the amount calculated under
paragraph (a)(3) of this section is the amount resulting from one
application of the percentage.
[65 FR 16718, Mar. 29, 2000]
[[Page 86]]
Sec. 5.630 Minimum rent.
(a) Minimum rent. (1) The PHA must charge a family no less than a
minimum monthly rent established by the responsible entity, except as
described in paragraph (b) of this section.
(2) For the public housing program and the section 8 moderate
rehabilitation, and certificate or voucher programs, the PHA may
establish a minimum rent of up to $50.
(3) For other section 8 programs, the minimum rent is $25.
(b) Financial hardship exemption from minimum rent. (1) When is
family exempt from minimum rent? The responsible entity must grant an
exemption from payment of minimum rent if the family is unable to pay
the minimum rent because of financial hardship, as described in the
responsible entity's written policies. Financial hardship includes these
situations:
(i) When the family has lost eligibility for or is awaiting an
eligibility determination for a Federal, State, or local assistance
program, including a family that includes a member who is a noncitizen
lawfully admitted for permanent residence under the Immigration and
Nationality Act who would be entitled to public benefits but for title
IV of the Personal Responsibility and Work Opportunity Act of 1996;
(ii) When the family would be evicted because it is unable to pay
the minimum rent;
(iii) When the income of the family has decreased because of changed
circumstances, including loss of employment;
(iv) When a death has occurred in the family; and
(v) Other circumstances determined by the responsible entity or HUD.
(2) What happens if family requests a hardship exemption? (i) Public
housing. (A) If a family requests a financial hardship exemption, the
PHA must suspend the minimum rent requirement beginning the month
following the family's request for a hardship exemption, and continuing
until the PHA determines whether there is a qualifying financial
hardship and whether it is temporary or long term.
(B) The PHA must promptly determine whether a qualifying hardship
exists and whether it is temporary or long term.
(C) The PHA may not evict the family for nonpayment of minimum rent
during the 90-day period beginning the month following the family's
request for a hardship exemption.
(D) If the PHA determines that a qualifying financial hardship is
temporary, the PHA must reinstate the minimum rent from the beginning of
the suspension of the minimum rent. The PHA must offer the family a
reasonable repayment agreement, on terms and conditions established by
the PHA, for the amount of back minimum rent owed by the family.
(ii) All section 8 programs. (A) If a family requests a financial
hardship exemption, the responsible entity must suspend the minimum rent
requirement beginning the month following the family's request for a
hardship exemption until the responsible entity determines whether there
is a qualifying financial hardship, and whether such hardship is
temporary or long term.
(B) The responsible entity must promptly determine whether a
qualifying hardship exists and whether it is temporary or long term.
(C) If the responsible entity determines that a qualifying financial
hardship is temporary, the PHA must not impose the minimum rent during
the 90-day period beginning the month following the date of the family's
request for a hardship exemption. At the end of the 90-day suspension
period, the responsible entity must reinstate the minimum rent from the
beginning of the suspension. The family must be offered a reasonable
repayment agreement, on terms and conditions established by the
responsible entity, for the amount of back rent owed by the family.
(iii) All programs. (A) If the responsible entity determines there
is no qualifying financial hardship exemption, the responsible entity
must reinstate the minimum rent, including back rent owed from the
beginning of the suspension. The family must pay the back rent on terms
and conditions established by the responsible entity.
(B) If the responsible entity determines a qualifying financial
hardship
[[Page 87]]
is long term, the responsible entity must exempt the family from the
minimum rent requirements so long as such hardship continues. Such
exemption shall apply from the beginning of the month following the
family's request for a hardship exemption until the end of the
qualifying financial hardship.
(C) The financial hardship exemption only applies to payment of the
minimum rent (as determined pursuant to Sec. 5.628(a)(4) and
Sec. 5.630), and not to the other elements used to calculate the total
tenant payment (as determined pursuant to Sec. 5.628(a)(1), (a)(2) and
(a)(3)).
(3) Public housing: Grievance hearing concerning PHA denial of
request for hardship exemption. If a public housing family requests a
hearing under the PHA grievance procedure, to review the PHA's
determination denying or limiting the family's claim to a financial
hardship exemption, the family is not required to pay any escrow deposit
in order to obtain a grievance hearing on such issues.
[65 FR 16718, Mar. 29, 2000]
Sec. 5.632 Utility reimbursements.
(a) Applicability. This section is applicable to:
(1) The Section 8 programs other than the Section 8 voucher program
(for distribution of a voucher housing assistance payment that exceeds
rent to owner, see Sec. 982.514(b) of this title);
(2) A public housing family paying an income-based rent (see
Sec. 960.253 of this title). (Utility reimbursement is not paid for a
public housing family that is paying a flat rent.)
(b) Payment of utility reimbursement. (1) The responsible entity
pays a utility reimbursement if the utility allowance (for tenant-paid
utilities) exceeds the amount of the total tenant payment.
(2) In the public housing program (where the family is paying an
income-based rent), the Section 8 moderate rehabilitation program and
the Section 8 certificate or voucher program, the PHA may pay the
utility reimbursement either to the family or directly to the utility
supplier to pay the utility bill on behalf of the family. If the PHA
elects to pay the utility supplier, the PHA must notify the family of
the amount paid to the utility supplier.
(3) In the other Section 8 programs, the owner must pay the utility
reimbursement either:
(i) To the family, or
(ii) With consent of the family, to the utility supplier to pay the
utility bill on behalf of the family.
[65 FR 16719, Mar. 29, 2000]
Sec. 5.634 Tenant rent.
(a) Section 8 programs. For Section 8 programs other than the
Section 8 voucher program, tenant rent is total tenant payment minus any
utility allowance.
(b) Public housing. See Sec. 960.253 of this title for the
determination of tenant rent.
[65 FR 16719, Mar. 29, 2000]
Section 8 Project-Based Assistance: Occupancy Requirements
Sec. 5.653 Section 8 project-based assistance programs: Admission--Income-eligibility and income-targeting.
(a) Applicability. This section describes requirements concerning
income-eligibility and income-targeting that apply to the Section 8
project-based assistance programs, except for the moderate
rehabilitation and the project-based certificate or voucher programs.
(b) Who is eligible?
(1) Basic eligibility. An applicant must meet all eligibility
requirements in order to receive housing assistance. At a minimum, the
applicant must be a family, as defined in Sec. 5.403, and must be
income-eligible, as described in this section. Such eligible applicants
include single persons.
(2) Low income limit. No family other than a low income family is
eligible for admission to the Section 8 project-based assistance
programs. (This paragraph (b) does not apply to the Section 8 project-
based voucher program under part 983 of this title.)
(c) Targeting to extremely low income families. For each project
assisted under a contract for project-based assistance, of the dwelling
units that become available for occupancy in any fiscal year that are
assisted under the contract, not less than 40 percent shall
[[Page 88]]
be available for leasing only by families that are extremely low income
families at the time of admission.
(d) Limitation on admission of non-very low income families.
(1) Admission to units available before October 1, 1981. Not more
than 25 percent of the Section 8 project-based dwelling units that were
available for occupancy under Section 8 Housing Assistance Payments
Contracts effective before October 1, 1981 and that are leased on or
after that date shall be available for leasing by low income families
other than very low income families. HUD reserves the right to limit the
admission of low income families other than very low income families to
these units.
(2) Admission to units available on or after October 1, 1981. Not
more than 15 percent of the Section 8 project-based dwelling units that
initially become available for occupancy under Section 8 Housing
Assistance Payments (HAP) Contracts on or after October 1, 1981 shall be
available for leasing by low income families other than families that
are very low income families at the time of admission to the Section 8
program. Except with the prior approval of HUD under paragraphs (d)(3)
and (d)(4) of this section, the owner may only lease such units to very
low income families.
(3) Request for exception. A request by an owner for approval of
admission of low income families other than very low income families to
section 8 project-based units must state the basis for requesting the
exception and provide supporting data. Bases for exceptions that may be
considered include the following:
(i) Need for admission of a broader range of tenants to preserve the
financial or management viability of a project because there is an
insufficient number of potential applicants who are very low income
families;
(ii) Commitment of an owner to attaining occupancy by families with
a broad range of incomes;
(iii) Project supervision by a State Housing Finance Agency having a
policy of occupancy by families with a broad range of incomes supported
by evidence that the Agency is pursuing this goal throughout its
assisted projects in the community, or a project with financing through
Section 11(b) of the 1937 Act (42 U.S.C. 1437i) or under Section 103 of
the Internal Revenue Code (26 U.S.C. 103); and
(iv) Low-income families that otherwise would be displaced from a
Section 8 project.
(4) Action on request for exception. Whether to grant any request
for exception is a matter committed by law to HUD's discretion, and no
implication is intended to be created that HUD will seek to grant
approvals up to the maximum limits permitted by statute, nor is any
presumption of an entitlement to an exception created by the
specification of certain grounds for exception that HUD may consider.
HUD will review exceptions granted to owners at regular intervals. HUD
may withdraw permission to exercise those exceptions for program
applicants at any time that exceptions are not being used or after a
periodic review, based on the findings of the review.
(e) Income used for eligibility and targeting. Family annual income
(see Sec. 5.609) is used both for determination of income-eligibility
and for income-targeting under this section.
(f) Reporting. The Section 8 owner must comply with HUD-prescribed
reporting requirements, including income reporting requirements that
will permit HUD to maintain the data necessary to monitor compliance
with income-eligibility and income-targeting requirements.
[65 FR 16719, Mar. 29, 2000]
Sec. 5.655 Section 8 project-based assistance programs: Owner preferences in selection for a project or unit.
(a) Applicability. This section applies to the section 8 project-
based assistance programs. The section describes requirements concerning
the Section 8 owner's selection of residents to occupy a project or
unit, except for the moderate rehabilitation and the project-based
certificate or voucher programs.
(b) Selection. (1) Selection for owner's project or unit. Selection
for occupancy of a project or unit is the function of the Section 8
owner. However, selection is subject to the income-eligibility
[[Page 89]]
and income-targeting requirements in Sec. 5.653.
(2) Tenant selection plan. The owner must adopt a written tenant
selection plan in accordance with HUD requirements.
(3) Amount of income. The owner may not select a family for
occupancy of a project or unit in an order different from the order on
the owner's waiting list for the purpose of selecting a relatively
higher income family. However, an owner may select a family for
occupancy of a project or unit based on its income in order to satisfy
the targeting requirements of Sec. 5.653(c).
(4) Selection for particular unit. In selecting a family to occupy a
particular unit, the owner may match family characteristics with the
type of unit available, for example, number of bedrooms. If a unit has
special accessibility features for persons with disabilities, the owner
must first offer the unit to families which include persons with
disabilities who require such features (see Secs. 8.27 and 100.202 of
this title).
(5) Housing assistance limitation for single persons. A single
person who is not an elderly or displaced person, a person with
disabilities, or the remaining member of a resident family may not be
provided a housing unit with two or more bedrooms.
(c) Particular owner preferences. The owner must inform all
applicants about available preferences and must give applicants an
opportunity to show that they qualify for available preferences.
(1) Residency requirements or preferences. (i) Residency
requirements are prohibited. Although the owner is not prohibited from
adopting a residency preference, the owner may only adopt or implement
residency preferences in accordance with non-discrimination and equal
opportunity requirements listed at Sec. 5.105(a).
(ii) A residency preference is a preference for admission of persons
who reside in a specified geographic area (``residency preference
area'').
(iii) An owner's residency preference must be approved by HUD in one
of the following methods:
(A) Prior approval of the housing market area in the Affirmative
Fair Housing Marketing plan (in accordance with Sec. 108.25 of this
title) as a residency preference area;
(B) Prior approval of the residency preference area in the PHA plan
of the jurisdiction in which the project is located;
(C) Modification of the Affirmative Fair Housing Marketing Plan, in
accordance with Sec. 108.25 of this title,
(iv) Use of a residency preference may not have the purpose or
effect of delaying or otherwise denying admission to a project or unit
based on the race, color, ethnic origin, gender, religion, disability,
or age of any member of an applicant family.
(v) A residency preference must not be based on how long an
applicant has resided or worked in a residency preference area.
(vi) Applicants who are working or who have been notified that they
are hired to work in a residency preference area must be treated as
residents of the residency preference area. The owner may treat
graduates of, or active participants in, education and training programs
in a residency preference area as residents of the residency preference
area if the education or training program is designed to prepare
individuals for the job market.
(2) Preference for working families. (i) The owner may adopt a
preference for admission of working families (families where the head,
spouse or sole member is employed). However, an applicant shall be given
the benefit of the working family preference if the head and spouse, or
sole member, is age 62 or older, or is a person with disabilities.
(ii) If the owner adopts a preference for admission of working
families, the owner must not give a preference based on the amount of
earned income.
(3) Preference for person with disabilities. The owner may adopt a
preference for admission of families that include a person with
disabilities. However, the owner may not adopt a preference for
admission of persons with a specific disability.
(4) Preference for victims of domestic violence. The owner should
consider whether to adopt a preference for admission of families that
include victims of domestic violence.
(5) Preference for single persons who are elderly, displaced,
homeless or persons
[[Page 90]]
with disabilities over other single persons. The owner may adopt a
preference for admission of single persons who are age 62 or older,
displaced, homeless, or persons with disabilities over other single
persons.
[65 FR 16720, Mar. 29, 2000]
Sec. 5.657 Section 8 project-based assistance programs: Reexamination of family income and composition.
(a) Applicability. This section states requirements for
reexamination of family income and composition in the Section 8 project-
based assistance programs, except for the moderate rehabilitation and
the project-based certificate or voucher programs.
(b) Regular reexamination. The owner must conduct a reexamination
and redetermination of family income and composition at least annually.
(c) Interim reexaminations. A family may request an interim
reexamination of family income because of any changes since the last
examination. The owner must make the interim reexamination within a
reasonable time after the family request. The owner may adopt policies
prescribing when and under what conditions the family must report a
change in family income or composition.
[65 FR 16720, Mar. 29, 2000]
Sec. 5.659 Family information and verification.
(a) Applicability. This section states requirements for
reexamination of family income and composition in the Section 8 project-
based assistance programs, except for the moderate rehabilitation
program and the project-based certificate or voucher programs.
(b) Family obligation to supply information. (1) The family must
supply any information that HUD or the owner determines is necessary in
administration of the Section 8 program, including submission of
required evidence of citizenship or eligible immigration status (as
provided by part 5, subpart E of this title). ``Information'' includes
any requested certification, release or other documentation.
(2) The family must supply any information requested by the owner or
HUD for use in a regularly scheduled reexamination or an interim
reexamination of family income and composition in accordance with HUD
requirements.
(3) For requirements concerning the following, see part 5, subpart B
of this title:
(i) Family verification and disclosure of social security numbers;
(ii) Family execution and submission of consent forms for obtaining
wage and claim information from State Wage Information Collection
Agencies (SWICAs).
(4) Any information supplied by the family must be true and
complete.
(c) Family release and consent. (1) As a condition of admission to
or continued occupancy of a unit with Section 8 assistance, the owner
must require the family head, and such other family members as the owner
designates, to execute a HUD-approved release and consent form
(including any release and consent as required under Sec. 5.230 of this
title) authorizing any depository or private source of income, or any
Federal, State or local agency, to furnish or release to the owner or
HUD such information as the owner or HUD determines to be necessary.
(2) The use or disclosure of information obtained from a family or
from another source pursuant to this release and consent shall be
limited to purposes directly connected with administration of the
Section 8 program.
(d) Owner responsibility for verification. The owner must obtain and
document in the family file third party verification of the following
factors, or must document in the file why third party verification was
not available:
(1) Reported family annual income;
(2) The value of assets;
(3) Expenses related to deductions from annual income; and
(4) Other factors that affect the determination of adjusted income.
[65 FR 16721, Mar. 29, 2000]
Sec. 5.661 Section 8 project-based assistance programs: Approval for police or other security personnel to live in project.
(a) Applicability. This section describes when a Section 8 owner may
lease a Section 8 unit to police or other
[[Page 91]]
security personnel with continued Section 8 assistance for the unit.
This section applies to the Section 8 project-based assistance programs.
(b) Terms. (1) Security personnel means:
(i) A police officer, or
(ii) A qualified security professional, with adequate training and
experience to provide security services for project residents.
(2) Police officer means a person employed on a full-time basis as a
duly licensed professional police officer by a Federal, State or local
government or by any agency of these governments.
(3) Security includes the protection of project residents, including
resident project management from criminal or other activity that is a
threat to person or property, or that arouses fears of such threat.
(c) Owner application. (1) The owner may submit a written
application to the contract administrator (PHA or HUD) for approval to
lease an available unit in a Section 8 project to security personnel who
would not otherwise be eligible for Section 8 assistance, for the
purpose of increasing security for Section 8 families residing in the
project. (2) The owner's application must include the following
information:
(i) A description of criminal activities in the project and the
surrounding community, and the effect of criminal activity on the
security of project residents.
(ii) Qualifications of security personnel who will reside in the
project, and the period of residence by such personnel. How owner
proposes to check backgrounds and qualifications of any security
personnel who will reside in the project.
(iii) Full disclosure of any family relationship between the owner
and any security personnel. For this purpose, ``owner'' includes a
principal or other interested party.
(iv) How residence by security personnel in a project unit will
increase security for Section 8 assisted families residing in the
project.
(v) The amount payable monthly as rent to the unit owner by security
personnel residing in the project (including a description of how this
amount is determined), and the amount of any other compensation by the
owner to such resident security personnel.
(vi) The terms of occupancy by such security personnel. The lease by
owner to the approved security personnel may provide that occupancy of
the unit is authorized only while the security personnel is
satisfactorily performing any agreed responsibilities and functions for
project security.
(vii) Other information as requested by the contract administrator.
(d) Action by contract administrator. (1) The contract administrator
shall have discretion to approve or disapprove owner's application, and
to impose conditions for approval of occupancy by security personnel in
a section 8 project unit.
(2) Notice of approval by the contract administrator shall specify
the term of such approved occupancy. Such approval may be withdrawn at
the discretion of the contract administrator, for example, if the
contract administrator determines that such occupancy is not providing
adequate security benefits as proposed in the owner's application; or
that security benefits from such occupancy are not a sufficient return
for program costs.
(e) Housing assistance payment and rent. (1) During approved
occupancy by security personnel as provided in this section, the amount
of the monthly housing assistance payment to the owner shall be equal to
the contract rent (as determined in accordance with the HAP contract and
HUD requirements) minus the amount (as approved by the contract
administrator) of rent payable monthly as rent to the unit owner by such
security personnel. The owner shall bear the risk of collecting such
rent from such security personnel, and the amount of the housing
assistance payment shall not be increased because of non-payment by such
security personnel. The owner shall not be entitled to receive any
vacancy payment for the period following occupancy by such security
personnel.
(2) In approving the amount of monthly rent payable by security
personnel for occupancy of a contract unit, the contract administrator
may consider whether security services to be performed are an adequate
return for housing assistance payments on the
[[Page 92]]
unit, or whether the cost of security services should be borne by the
owner from other project income.
[65 FR 16721, Mar. 29, 2000]
Effective Date Note: At 65 FR 16721, Mar. 29, 2000, Sec. 5.661 was
added. This section contains information collection and recordkeeping
requirements and will not become effective until approval has been given
by the Office of Management and Budget.
Subpart G--Physical Condition Standards and Inspection Requirements
Source: 63 FR 46577, Sept. 1, 1998, unless otherwise noted.
Sec. 5.701 Applicability.
(a) This subpart applies to housing assisted under the HUD programs
listed in 24 CFR 200.853(a).
(b) This subpart applies to housing with mortgages insured or held
by HUD, or housing that is receiving assistance from HUD, under the
programs listed in 24 CFR 200.853(b).
(c) This subpart also applies to Public Housing (housing receiving
assistance under the U.S. Housing Act of 1937, other than under section
8 of the Act).
(d) For purposes of this subpart, the term ``HUD housing'' means the
types of housing listed in paragraphs (a), (b), and (c) of this section.
[63 FR 46577, Sept. 1, 1998, as amended at 65 FR 77240, Dec. 8, 2000]
Sec. 5.703 Physical condition standards for HUD housing that is decent, safe, sanitary and in good repair (DSS/GR).
HUD housing must be decent, safe, sanitary and in good repair.
Owners of housing described in Sec. 5.701(a), mortgagors of housing
described in Sec. 5.701(b), and PHAs and other entities approved by HUD
owning housing described in Sec. 5.701(c), must maintain such housing in
a manner that meets the physical condition standards set forth in this
section in order to be considered decent, safe, sanitary and in good
repair. These standards address the major areas of the HUD housing: the
site; the building exterior; the building systems; the dwelling units;
the common areas; and health and safety considerations.
(a) Site. The site components, such as fencing and retaining walls,
grounds, lighting, mailboxes/project signs, parking lots/driveways, play
areas and equipment, refuse disposal, roads, storm drainage and walkways
must be free of health and safety hazards and be in good repair. The
site must not be subject to material adverse conditions, such as
abandoned vehicles, dangerous walks or steps, poor drainage, septic tank
back-ups, sewer hazards, excess accumulations of trash, vermin or rodent
infestation or fire hazards.
(b) Building exterior. Each building on the site must be
structurally sound, secure, habitable, and in good repair. Each
building's doors, fire escapes, foundations, lighting, roofs, walls, and
windows, where applicable, must be free of health and safety hazards,
operable, and in good repair.
(c) Building systems. Each building's domestic water, electrical
system, elevators, emergency power, fire protection, HVAC, and sanitary
system must be free of health and safety hazards, functionally adequate,
operable, and in good repair.
(d) Dwelling units. (1) Each dwelling unit within a building must be
structurally sound, habitable, and in good repair. All areas and aspects
of the dwelling unit (for example, the unit's bathroom, call-for-aid (if
applicable), ceiling, doors, electrical systems, floors, hot water
heater, HVAC (where individual units are provided), kitchen, lighting,
outlets/switches, patio/porch/balcony, smoke detectors, stairs, walls,
and windows) must be free of health and safety hazards, functionally
adequate, operable, and in good repair.
(2) Where applicable, the dwelling unit must have hot and cold
running water, including an adequate source of potable water (note for
example that single room occupancy units need not contain water
facilities).
(3) If the dwelling unit includes its own sanitary facility, it must
be in proper operating condition, usable in privacy, and adequate for
personal hygiene and the disposal of human waste.
(4) The dwelling unit must include at least one battery-operated or
hard-
[[Page 93]]
wired smoke detector, in proper working condition, on each level of the
unit.
(e) Common areas. The common areas must be structurally sound,
secure, and functionally adequate for the purposes intended. The
basement/garage/carport, restrooms, closets, utility, mechanical,
community rooms, day care, halls/corridors, stairs, kitchens, laundry
rooms, office, porch, patio, balcony, and trash collection areas, if
applicable, must be free of health and safety hazards, operable, and in
good repair. All common area ceilings, doors, floors, HVAC, lighting,
outlets/switches, smoke detectors, stairs, walls, and windows, to the
extent applicable, must be free of health and safety hazards, operable,
and in good repair. These standards for common areas apply, to a varying
extent, to all HUD housing, but will be particularly relevant to
congregate housing, independent group homes/residences, and single room
occupancy units, in which the individual dwelling units (sleeping areas)
do not contain kitchen and/or bathroom facilities.
(f) Health and safety concerns. All areas and components of the
housing must be free of health and safety hazards. These areas include,
but are not limited to, air quality, electrical hazards, elevators,
emergency/fire exits, flammable materials, garbage and debris, handrail
hazards, infestation, and lead-based paint. For example, the buildings
must have fire exits that are not blocked and have hand rails that are
undamaged and have no other observable deficiencies. The housing must
have no evidence of infestation by rats, mice, or other vermin, or of
garbage and debris. The housing must have no evidence of electrical
hazards, natural hazards, or fire hazards. The dwelling units and common
areas must have proper ventilation and be free of mold, odor (e.g.,
propane, natural gas, methane gas), or other observable deficiencies.
The housing must comply with all requirements related to the evaluation
and reduction of lead-based paint hazards and have available proper
certifications of such (see 24 CFR part 35).
(g) Compliance with State and local codes. The physical condition
standards in this section do not supersede or preempt State and local
codes for building and maintenance with which HUD housing must comply.
HUD housing must continue to adhere to these codes.
Sec. 5.705 Uniform physical inspection requirements.
Any entity responsible for conducting a physical inspection of HUD
housing, to determine compliance with this subpart, must inspect such
HUD housing annually in accordance with HUD-prescribed physical
inspection procedures. The inspection must be conducted annually unless
the program regulations governing the housing provide otherwise or
unless HUD has provided otherwise by notice.
[65 FR 77240, Dec. 8, 2000]
Subpart H--Uniform Financial Reporting Standards
Sec. 5.801 Uniform financial reporting standards.
(a) Applicability. This subpart H implements uniform financial
reporting standards for:
(1) Public housing agencies (PHAs) receiving assistance under
sections 5, 9, or 14 of the 1937 Act (42 U.S.C. 1437c, 1437g, and 1437l)
(Public Housing);
(2) PHAs as contract administrators for any Section 8 project-based
or tenant-based housing assistance payments program, which includes
assistance under the following programs:
(i) Section 8 project-based housing assistance payments programs,
including, but not limited to, the Section 8 New Construction,
Substantial Rehabilitation, Loan Management Set-Aside, Property
Disposition, and Moderate Rehabilitation (including the Single Room
Occupancy program for homeless individuals);
(ii) Section 8 Project-Based Certificate programs;
(iii) Any program providing Section 8 project-based renewal
contracts; and
(iv) Section 8 tenant-based assistance under the Section 8
Certificate and Voucher program.
(3) Owners of housing assisted under any Section 8 project-based
housing assistance payments program:
[[Page 94]]
(i) Including, but not limited to, the Section 8 New Construction,
Substantial Rehabilitation, Loan Management Set-Aside, and Property
Disposition programs;
(ii) Excluding the Section 8 Moderate Rehabilitation Program (which
includes the Single Room Occupancy program for homeless individuals) and
the Section 8 Project-Based Certificate Program;
(4) Owners of multifamily projects receiving direct or indirect
assistance from HUD, or with mortgages insured, coinsured, or held by
HUD, including but not limited to housing under the following HUD
programs:
(i) Section 202 Program of Supportive Housing for the Elderly;
(ii) Section 811 Program of Supportive Housing for Persons with
Disabilities;
(iii) Section 202 loan program for projects for the elderly and
handicapped (including 202/8 projects and 202/162 projects);
(iv) Section 207 of the National Housing Act (NHA) (12 U.S.C. 1701
et seq.) (Rental Housing Insurance);
(v) Section 213 of the NHA (Cooperative Housing Insurance);
(vi) Section 220 of the NHA (Rehabilitation and Neighborhood
Conservation Housing Insurance);
(vii) Section 221(d) (3) and (5) of the NHA (Housing for Moderate
Income and Displaced Families);
(viii) Section 221(d)(4) of the NHA (Housing for Moderate Income and
Displaced Families);
(ix) Section 231 of the NHA (Housing for Elderly Persons);
(x) Section 232 of the NHA (Mortgage Insurance for Nursing Homes,
Intermediate Care Facilities, Board and Care Homes);
(xi) Section 234(d) of the NHA (Rental) (Mortgage Insurance for
Condominiums);
(xii) Section 236 of the NHA (Rental and Cooperative Housing for
Lower Income Families);
(xiii) Section 241 of the NHA (Supplemental Loans for Multifamily
Projects); and
(5) HUD-approved Title I and Title II nonsupervised lenders,
nonsupervised mortgagees, and loan correspondents.
(b) Submission of financial information. Entities (or individuals)
to which this subpart is applicable must provide to HUD, on an annual
basis, such financial information as required by HUD. This financial
information must be:
(1) Prepared in accordance with Generally Accepted Accounting
Principles as further defined by HUD in supplementary guidance;
(2) Submitted electronically to HUD through the internet, or in such
other electronic format designated by HUD, or in such non-electronic
format as HUD may allow if the burden or cost of electronic reporting is
determined by HUD to be excessive; and
(3) Submitted in such form and substance as prescribed by HUD.
(c) Annual financial report filing dates. (1) For entities listed in
paragraphs (a)(1) and (2) of this section, the financial information to
be submitted to HUD in accordance with paragraph (b) of this section,
must be submitted to HUD annually, no later than 60 days after the end
of the fiscal year of the reporting period, and as otherwise provided by
law (for public housing agencies, see also 24 CFR 903.33).
(2) For entities listed in paragraphs (a)(3) and (4) of this
section, the financial information to be submitted to HUD in accordance
with paragraph (b) of this section, must be submitted to HUD annually,
no later than 90 days after the end of the fiscal year of the reporting
period, and as otherwise provided by law.
(3) For those entities listed in paragraph (a)(5) of this section,
the financial information to be submitted to HUD in accordance with
paragraph (b) of this section must be submitted to HUD annually, no
later than 90 days after the end of the fiscal year (or within an
extended time if an extension is granted at the sole discretion of the
Secretary). An extension request must be received no earlier than 45
days and no later than 15 days prior to the submission deadline.
(d) Reporting compliance dates. Entities (or individuals) that are
subject to the reporting requirements in this section must commence
compliance with these requirements as follows:
[[Page 95]]
(1) For PHAs listed in paragraphs (a)(1) and (a)(2) of this section,
the requirements of this section will begin with those PHAs with fiscal
years ending September 30, 1999 and later. Unaudited financial
statements will be required 60 days after the PHA's fiscal year end, and
audited financial statements will then be required no later than 9
months after the PHA's fiscal year end, in accordance with the Single
Audit Act and OMB Circular A-133 (See 24 CFR 84.26). A PHA with a fiscal
year ending September 30, 1999 that elects to submit its unaudited
financial report earlier than the due date of November 30, 1999 must
submit its report as required in this section. On or after September 30,
1998, but prior to November 30, 1999 (except for a PHA with its fiscal
year ending September 30, 1999), PHAs may submit their financial reports
in accordance with this section.
(2) For entities listed in paragraphs (a)(3) and (a)(4) of this
section, the requirements of this section will begin with those entities
with fiscal years ending December 31, 1998 and later. Entities listed in
paragraphs (a)(3) and (a)(4) of this section with fiscal years ending
December 31, 1998 that elect to submit their reports earlier than the
due date must submit their financial reports as required in this
section. On or after September 30, 1998 but prior to January 1, 1999,
these entities may submit their financial reports in accordance with
this section.
(3) The requirements of this section apply to the entities listed in
paragraph (a)(5) of this section with fiscal years ending on or after
September 30, 2002. Audited financial statements submitted by lenders
with fiscal years ending before September 30, 2002, may either be
submitted in paper or electronically at the lenders' option. Audited
financial statements submitted by lenders with fiscal years ending on or
after September 30, 2002, must be submitted electronically.
(e) Limitation on changing fiscal years. To allow for a period of
consistent assessment of the financial reports submitted to HUD under
this subpart part, PHAs listed in paragraphs (a)(1) and (a)(2) of this
section will not be allowed to change their fiscal years for their first
three full fiscal years following October 1, 1998.
(f) Responsibility for submission of financial report. The
responsibility for submission of the financial report due to HUD under
this section rests with the individuals and entities listed in paragraph
(a) of this section.
[63 FR 46591, Sept. 1, 1998, as amended at 64 FR 1505, Jan. 11, 1999; 64
FR 33755, June 24, 1999; 65 FR 16295, Mar. 27, 2000; 67 FR 53451, Aug.
15, 2002]
Subpart I--Preventing Crime in Federally Assisted Housing--Denying
Admission and Terminating Tenancy for Criminal Activity or Alcohol Abuse
Source: 66 FR 28792, May 24, 2001, unless otherwise noted.
General
Sec. 5.850 Which subsidized housing is covered by this subpart?
(a) If you are the owner of federally assisted housing, your
federally assisted housing is covered, except as provided in paragraph
(b) or (c) of this section.
(b) If you are operating public housing, this subpart does not
apply, but similar provisions applicable to public housing units are
found in parts 960 and 966 of this title. If you administer tenant-based
assistance under Section 8 or you are the owner of housing assisted with
tenant-based assistance under Section 8, this subpart does not apply to
you, but similar provisions that do apply are located in part 982 of
this title.
(c) If you own or administer housing assisted by the Rural Housing
Administration under section 514 or section 515 of the Housing Act of
1949, this subpart does not apply to you.
Sec. 5.851 What authority do I have to screen applicants and to evict tenants?
(a) Screening applicants. You are authorized to screen applicants
for the programs covered by this part. The provisions of this subpart
implement statutory directives that either require
[[Page 96]]
or permit you to take action to deny admission to applicants under
certain circumstances in accordance with established standards, as
described in this subpart. The provisions of this subpart do not
constrain your authority to screen out applicants who you determined are
unsuitable under your standards for admission.
(b) Terminating tenancy. You are authorized to terminate tenancy of
tenants, in accordance with your leases and landlord-tenant law for the
programs covered by this part. The provisions of this subpart implement
statutory directives that either require or permit you to terminate
tenancy under certain circumstances, as provided in 42 U.S.C. 1437f,
1437n, and 13662, in accordance with established standards, as described
in this subpart. You retain authority to terminate tenancy on any basis
that is otherwise authorized.
Sec. 5.852 What discretion do I have in screening and eviction actions?
(a) General. If the law and regulation permit you to take an action
but do not require action to be taken, you may take or not take the
action in accordance with your standards for admission and eviction.
Consistent with the application of your admission and eviction
standards, you may consider all of the circumstances relevant to a
particular admission or eviction case, such as:
(1) The seriousness of the offending action;
(2) The effect on the community of denial or termination or the
failure of the responsible entity to take such action;
(3) The extent of participation by the leaseholder in the offending
action;
(4) The effect of denial of admission or termination of tenancy on
household members not involved in the offending action;
(5) The demand for assisted housing by families who will adhere to
lease responsibilities;
(6) The extent to which the leaseholder has shown personal
responsibility and taken all reasonable steps to prevent or mitigate the
offending action; and
(7) The effect of the responsible entity's action on the integrity
of the program.
(b) Exclusion of culpable household member. You may require an
applicant (or tenant) to exclude a household member in order to be
admitted to the housing program (or continue to reside in the assisted
unit), where that household member has participated in or been culpable
for action or failure to act that warrants denial (or termination).
(c) Consideration of rehabilitation. (1) In determining whether to
deny admission or terminate tenancy for illegal use of drugs or alcohol
abuse by a household member who is no longer engaged in such behavior,
you may consider whether such household member is participating in or
has successfully completed a supervised drug or alcohol rehabilitation
program, or has otherwise been rehabilitated successfully (42 U.S.C.
13661). For this purpose, you may require the applicant or tenant to
submit evidence of the household member's current participation in, or
successful completion of, a supervised drug or alcohol rehabilitation
program or evidence of otherwise having been rehabilitated successfully.
(2) If rehabilitation is not an element of the eligibility
determination (see Sec. 5.854(a)(1) for the case where it must be
considered), you may choose not to consider whether the person has been
rehabilitated.
(d) Length of period of mandatory prohibition on admission. If a
statute requires that you prohibit admission of persons for a prescribed
period of time after some disqualifying behavior or event, you may apply
that prohibition for a longer period of time.
(e) Nondiscrimination limitation. Your admission and eviction
actions must be consistent with fair housing and equal opportunity
provisions of Sec. 5.105.
Sec. 5.853 Definitions.
(a) Terms found elsewhere. The following terms are defined in
subpart A of this part: 1937 Act, covered person, drug, drug-related
criminal activity, federally assisted housing, guest, household, HUD,
other person under the tenant's control, premises, public housing,
public
[[Page 97]]
housing agency (PHA), Section 8, violent criminal activity.
(b) Additional terms used in this part are as follows.
Currently engaging in. With respect to behavior such as illegal use
of a drug, other drug-related criminal activity, or other criminal
activity, currently engaging in means that the individual has engaged in
the behavior recently enough to justify a reasonable belief that the
individual's behavior is current.
Owner. The owner of federally assisted housing.
Responsible entity. For the Section 8 project-based certificate or
project-based voucher program (part 983 of this title) and the Section 8
moderate rehabilitation program (part 882 of this title), responsible
entity means the PHA administering the program under an Annual
Contributions Contract with HUD. For all other federally assisted
housing, the responsible entity means the owner of the housing.
Denying Admissions
Sec. 5.854 When must I prohibit admission of individuals who have engaged in drug-related criminal activity?
(a) You must prohibit admission to your federally assisted housing
of an applicant for three years from the date of eviction if any
household member has been evicted from federally assisted housing for
drug-related criminal activity. However, you may admit the household if:
(1) The evicted household member who engaged in drug-related
criminal activity has successfully completed an approved supervised drug
rehabilitation program; or
(2) The circumstances leading to the eviction no longer exist (for
example, the criminal household member has died or is imprisoned).
(b) You must establish standards that prohibit admission of a
household to federally assisted housing if:
(1) You determine that any household member is currently engaging in
illegal use of a drug; or
(2) You determine that you have reasonable cause to believe that a
household member's illegal use or a pattern of illegal use of a drug may
interfere with the health, safety, or right to peaceful enjoyment of the
premises by other residents.
Sec. 5.855 When am I specifically authorized to prohibit admission of individuals who have engaged in criminal activity?
(a) You may prohibit admission of a household to federally assisted
housing under your standards if you determine that any household member
is currently engaging in, or has engaged in during a reasonable time
before the admission decision:
(1) Drug-related criminal activity;
(2) Violent criminal activity;
(3) Other criminal activity that would threaten the health, safety,
or right to peaceful enjoyment of the premises by other residents; or
(4) Other criminal activity that would threaten the health or safety
of the PHA or owner or any employee, contractor, subcontractor or agent
of the PHA or owner who is involved in the housing operations.
(b) You may establish a period before the admission decision during
which an applicant must not have engaged in the activities specified in
paragraph (a) of this section (reasonable time).
(c) If you previously denied admission to an applicant because of a
determination concerning a member of the household under paragraph (a)
of this section, you may reconsider the applicant if you have sufficient
evidence that the members of the household are not currently engaged in,
and have not engaged in, such criminal activity during a reasonable
period, determined by you, before the admission decision.
(1) You would have sufficient evidence if the household member
submitted a certification that she or he is not currently engaged in and
has not engaged in such criminal activity during the specified period
and provided supporting information from such sources as a probation
officer, a landlord, neighbors, social service agency workers and
criminal records, which you verified. (See subpart J of this part for
one method of checking criminal records.)
(2) For purposes of this section, a household member is currently
engaged in the criminal activity if the person
[[Page 98]]
has engaged in the behavior recently enough to justify a reasonable
belief that the behavior is current.
Sec. 5.856 When must I prohibit admission of sex offenders?
You must establish standards that prohibit admission to federally
assisted housing if any member of the household is subject to a lifetime
registration requirement under a State sex offender registration
program. In the screening of applicants, you must perform necessary
criminal history background checks in the State where the housing is
located and in other States where the household members are known to
have resided. (See Sec. 5.905.)
Sec. 5.857 When must I prohibit admission of alcohol abusers?
You must establish standards that prohibit admission to federally
assisted housing if you determine you have reasonable cause to believe
that a household member's abuse or pattern of abuse of alcohol
interferes with the health, safety, or right to peaceful enjoyment of
the premises by other residents.
Terminating Tenancy
Sec. 5.858 What authority do I have to evict drug criminals?
The lease must provide that drug-related criminal activity engaged
in on or near the premises by any tenant, household member, or guest,
and any such activity engaged in on the premises by any other person
under the tenant's control, is grounds for you to terminate tenancy. In
addition, the lease must allow you to evict a family when you determine
that a household member is illegally using a drug or when you determine
that a pattern of illegal use of a drug interferes with the health,
safety, or right to peaceful enjoyment of the premises by other
residents.
Sec. 5.859 When am I specifically authorized to evict other criminals?
(a) Threat to other residents. The lease must provide that the owner
may terminate tenancy for any of the following types of criminal
activity by a covered person:
(1) Any criminal activity that threatens the health, safety, or
right to peaceful enjoyment of the premises by other residents
(including property management staff residing on the premises); or
(2) Any criminal activity that threatens the health, safety, or
right to peaceful enjoyment of their residences by persons residing in
the immediate vicinity of the premises.
(b) Fugitive felon or parole violator. The lease must provide that
you may terminate the tenancy during the term of the lease if a tenant
is:
(1) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that, in
the case of the State of New Jersey, is a high misdemeanor; or
(2) Violating a condition of probation or parole imposed under
Federal or State law.
Sec. 5.860 When am I specifically authorized to evict alcohol abusers?
The lease must provide that you may terminate the tenancy if you
determine that a household member's abuse or pattern of abuse of alcohol
threatens the health, safety, or right to peaceful enjoyment of the
premises by other residents.
Sec. 5.861 What evidence of criminal activity must I have to evict?
You may terminate tenancy and evict the tenant through judicial
action for criminal activity by a covered person in accordance with this
subpart if you determine that the covered person has engaged in the
criminal activity, regardless of whether the covered person has been
arrested or convicted for such activity and without satisfying a
criminal conviction standard of proof of the activity.
Subpart J--Access to Criminal Records and Information
Source: 66 FR 28794, May 24, 2001, unless otherwise noted.
[[Page 99]]
Sec. 5.901 To what criminal records and searches does this subpart apply?
(a) General criminal records searches. This subpart applies to
criminal conviction background checks by PHAs that administer the
Section 8 and public housing programs when they obtain criminal
conviction records, under the authority of section 6(q) of the 1937 Act
(42 U.S.C. 1437d(q)), from a law enforcement agency to prevent admission
of criminals to public housing and Section 8 housing and to assist in
lease enforcement and eviction.
(b) Sex offender registration records searches. This subpart applies
to PHAs that administer the Section 8 and public housing programs when
they obtain sex offender registration information from State and local
agencies, under the authority of 42 U.S.C. 13663, to prevent admission
of dangerous sex offenders to federally assisted housing.
(c) Excluded records searches. The provisions of this subpart do not
apply to criminal conviction information or sex offender information
searches by a PHA or others of information from law enforcement agencies
or other sources other than as provided under this subpart.
Sec. 5.902 Definitions.
(a) Terms found elsewhere. The following terms used in this subpart
are defined in subpart A of this part: 1937 Act, drug, federally
assisted housing, household, HUD, public housing, public housing agency
(PHA), Section 8.
(b) Additional terms used in this subpart are as follows:
Adult. A person who is 18 years of age or older, or who has been
convicted of a crime as an adult under any Federal, State, or tribal
law.
Covered housing. Public housing, project-based assistance under
section 8 (including new construction and substantial rehabilitation
projects), and tenant-based assistance under section 8.
Law enforcement agency. The National Crime Information Center
(NCIC), police departments and other law enforcement agencies that hold
criminal conviction records.
Owner. The owner of federally assisted housing.
Responsible entity. For the public housing program, the Section 8
tenant-based assistance program (part 982 of this title), the Section 8
project-based certificate or project-based voucher program (part 983 of
this title), and the Section 8 moderate rehabilitation program (part 882
of this title), responsible entity means the PHA administering the
program under an Annual Contributions Contract with HUD. For all other
Section 8 programs, responsible entity means the Section 8 owner.
Sec. 5.903 What special authority is there to obtain access to criminal records?
(a) Authority. If you are a PHA that administers the Section 8
program and/or the public housing program, this section authorizes you
to obtain criminal conviction records from a law enforcement agency, as
defined in Sec. 5.902. You may use the criminal conviction records that
you obtain from a law enforcement agency under the authority of this
section to screen applicants for admission to covered housing programs
and for lease enforcement or eviction of families residing in public
housing or receiving Section 8 project-based assistance.
(b) Consent for release of criminal conviction records. (1) In order
to obtain access to records under this section, as a responsible entity
you must require every applicant family to submit a consent form signed
by each adult household member.
(2) By execution of the consent form, an adult household member
consents that:
(i) Any law enforcement agency may release criminal conviction
records concerning the household member to a PHA in accordance with this
section;
(ii) The PHA may receive the criminal conviction records from a law
enforcement agency, and may use the records in accordance with this
section.
(c) Procedure for PHA. (1) When the law enforcement agency receives
your request, the law enforcement agency must promptly release to you a
certified copy of any criminal conviction records concerning the
household member in the possession or control of the law enforcement
agency. NCIC
[[Page 100]]
records must be provided in accordance with NCIC procedures.
(2) The law enforcement agency may charge you a reasonable fee for
releasing criminal conviction records.
(d) Owner access to criminal records--(1) General. (i) If an owner
submits a request to the PHA for criminal records concerning an adult
member of an applicant or resident household, in accordance with the
provisions of paragraph (d) of this section, the PHA must request the
criminal conviction records from the appropriate law enforcement agency
or agencies, as determined by the PHA.
(ii) If the PHA receives criminal conviction records requested by an
owner, the PHA must determine whether criminal action by a household
member, as shown by such criminal conviction records, may be a basis for
applicant screening, lease enforcement or eviction, as applicable in
accordance with HUD regulations and the owner criteria.
(iii) The PHA must notify the owner whether the PHA has received
criminal conviction records concerning the household member, and of its
determination whether such criminal conviction records may be a basis
for applicant screening, lease enforcement or eviction. However, except
as provided in paragraph (e)(2)(ii) of this section, the PHA must not
disclose the household member's criminal conviction record or the
content of that record to the owner.
(2) Screening. If you are an owner of covered housing, you may
request that the PHA in the jurisdiction of the property obtain criminal
conviction records of an adult household member from a law enforcement
agency on your behalf for the purpose of screening applicants.
(i) Your request must include a copy of the consent form, signed by
the household member.
(ii) Your request must include your standards for prohibiting
admission of drug criminals in accordance with Sec. 5.854, and for
prohibiting admission of other criminals in accordance with Sec. 5.855.
(3) Eviction or lease enforcement. If you are an owner of a unit
with Section 8 project-based assistance, you may request that the PHA in
the location of the project obtain criminal conviction records of a
household member from an appropriate law enforcement agency on your
behalf in connection with lease enforcement or eviction.
(i) Your request must include a copy of the consent form, signed by
the household member.
(ii) If you intend to use the PHA determination regarding any such
criminal conviction records in connection with eviction, your request
must include your standards for evicting drug criminals in accordance
with Sec. 5.857, and for evicting other criminals in accordance with
Sec. 5.858.
(iii) If you intend to use the PHA determination regarding any such
criminal conviction records for lease enforcement other than eviction,
your request must include your standards for lease enforcement because
of criminal activity by members of a household.
(4) Fees. If an owner requests a PHA to obtain criminal conviction
records in accordance with this section, the PHA may charge the owner
reasonable fees for making the request on behalf of the owner and for
taking other actions for the owner. The PHA may require the owner to
reimburse costs incurred by the PHA, including reimbursement of any fees
charged to the PHA by the law enforcement agency, the PHA's own related
staff and administrative costs. The owner may not pass along to the
applicant or tenant the costs of a criminal records check.
(e) Permitted use and disclosure of criminal conviction records
received by PHA--(1) Use of records. Criminal conviction records
received by a PHA from a law enforcement agency in accordance with this
section may only be used for the following purposes:
(i) Applicant screening. (A) PHA screening of applicants for
admission to public housing (part 960 of this title);
(B) PHA screening of applicants for admission to the Housing Choice
Voucher Program (section 8 tenant-based assistance) (part 982 of this
title);
(C) PHA screening of applicants for admission to the Section 8
moderate rehabilitation program (part 882 of this title); or the Section
8 project-based certificate or project-based voucher program (part 983
of this title); or
[[Page 101]]
(D) PHA screening concerning criminal conviction of applicants for
admission to Section 8 project-based assistance, at the request of the
owner. (For requirements governing use of criminal conviction records
obtained by a PHA at the request of a Section 8 owner under this
section, see paragraph (d) of this section.)
(ii) Lease enforcement and eviction. (A) PHA enforcement of public
housing leases and PHA eviction of public housing residents;
(B) Enforcement of leases by a Section 8 project owner and eviction
of residents by a Section 8 project owner. (However, criminal conviction
records received by a PHA from a law enforcement agency under this
section may not be used for lease enforcement or eviction of residents
receiving Section 8 tenant-based assistance.)
(2) PHA disclosure of records. (i) A PHA may disclose the criminal
conviction records which the PHA receives from a law enforcement agency
only as follows:
(A) To officers or employees of the PHA, or to authorized
representatives of the PHA who have a job-related need to have access to
the information. For example, if the PHA is seeking to evict a public
housing tenant on the basis of criminal activity as shown in criminal
conviction records provided by a law enforcement agency, the records may
be disclosed to PHA employees performing functions related to the
eviction, or to a PHA hearing officer conducting an administrative
grievance hearing concerning the proposed eviction.
(B) To the owner for use in connection with judicial eviction
proceedings by the owner to the extent necessary in connection with a
judicial eviction proceeding. For example, criminal conviction records
may be included in pleadings or other papers filed in an eviction
action, may be disclosed to parties to the action or the court, and may
be filed in court or offered as evidence.
(ii) This disclosure may be made only if the following conditions
are satisfied:
(A) If the PHA has determined that criminal activity by the
household member as shown by such records received from a law
enforcement agency may be a basis for eviction from a Section 8 unit;
and
(B) If the owner certifies in writing that it will use the criminal
conviction records only for the purpose and only to the extent necessary
to seek eviction in a judicial proceeding of a Section 8 tenant based on
the criminal activity by the household member that is described in the
criminal conviction records.
(iii) The PHA may rely on an owner's certification that the criminal
record is necessary to proceed with a judicial eviction to evict the
tenant based on criminal activity of the identified household member, as
shown in the criminal conviction record.
(iv) Upon disclosure as necessary in connection with judicial
eviction proceedings, the PHA is not responsible for controlling access
to or knowledge of such records after such disclosure.
(f) Opportunity to dispute. If a PHA obtains criminal record
information from a State or local agency under this section showing that
a household member has been convicted of a crime relevant to applicant
screening, lease enforcement or eviction, the PHA must notify the
household of the proposed action to be based on the information and must
provide the subject of the record and the applicant or tenant a copy of
such information, and an opportunity to dispute the accuracy and
relevance of the information. This opportunity must be provided before a
denial of admission, eviction or lease enforcement action on the basis
of such information.
(g) Records management. Consistent with the limitations on
disclosure of records in paragraph (e) of this section, the PHA must
establish and implement a system of records management that ensures that
any criminal record received by the PHA from a law enforcement agency
is:
(1) Maintained confidentially;
(2) Not misused or improperly disseminated; and
(3) Destroyed, once the purpose(s) for which the record was
requested has been accomplished, including expiration of the period for
filing a challenge to the PHA action without institution of a challenge
or final disposition of any such litigation.
[[Page 102]]
(h) Penalties for improper release of information--(1) Criminal
penalty. Conviction for a misdemeanor and imposition of a penalty of not
more than $5,000 is the potential for:
(i) Any person, including an officer, employee, or authorized
representative of any PHA or of any project owner, who knowingly and
willfully requests or obtains any information concerning an applicant
for, or tenant of, covered housing assistance under the authority of
this section under false pretenses; or
(ii) Any person, including an officer, employee, or authorized
representative of any PHA or a project owner, who knowingly and
willfully discloses any such information in any manner to any individual
not entitled under any law to receive the information.
(2) Civil liability. (i) A PHA may be held liable to any applicant
for, or tenant of, covered housing assistance affected by either of the
following:
(A) A negligent or knowing disclosure of criminal records
information obtained under the authority of this section about such
person by an officer, employee, or authorized representative of the PHA
if the disclosure is not authorized by this section; or
(B) Any other negligent or knowing action that is inconsistent with
this section.
(ii) An applicant for, or tenant of, covered housing assistance may
seek relief against a PHA in these circumstances by bringing a civil
action for damages and such other relief as may be appropriate against
the PHA responsible for such unauthorized action. The United States
district court in which the affected applicant or tenant resides, in
which the unauthorized action occurred, or in which the officer,
employee, or representative alleged to be responsible resides, has
jurisdiction. Appropriate relief may include reasonable attorney's fees
and other litigation costs.
Sec. 5.905 What special authority is there to obtain access to sex offender registration information?
(a) PHA obligation to obtain sex offender registration information.
(1) A PHA that administers a Section 8 or public housing program under
an Annual Contributions Contract with HUD must carry out background
checks necessary to determine whether a member of a household applying
for admission to any federally assisted housing program is subject to a
lifetime sex offender registration requirement under a State sex
offender registration program. This check must be carried out with
respect to the State in which the housing is located and with respect to
States where members of the applicant household are known to have
resided.
(2) If the PHA requests such information from any State or local
agency responsible for the collection or maintenance of such
information, the State or local agency must promptly provide the PHA
such information in its possession or control.
(3) The State or local agency may charge a reasonable fee for
providing the information.
(b) Owner's request for sex offender registration information--(1)
General. An owner of federally assisted housing that is located in the
jurisdiction of a PHA that administers a Section 8 or public housing
program under an Annual Contributions Contract with HUD may request that
the PHA obtain information necessary to determine whether a household
member is subject to a lifetime registration requirement under a State
sex offender registration requirement.
(2) Procedure. If the request is made in accordance with the
provisions of paragraph (b) of this section:
(i) The PHA must request the information from a State or local
agency;
(ii) The State or local agency must promptly provide the PHA such
information in its possession or control;
(iii) The PHA must determine whether such information may be a basis
for applicant screening, lease enforcement or eviction, based on the
criteria used by the owner as specified in the owner's request, and
inform the owner of the determination.
(iv) The PHA must notify the owner of its determination whether sex
offender registration information received by the PHA under this section
concerning a household member may be a basis for applicant screening,
lease enforcement or eviction in accordance with HUD requirements and
the criteria used by the owner.
[[Page 103]]
(3) Contents of request. As the owner, your request must specify
whether you are asking the PHA to obtain the sex offender registration
information concerning the household member for applicant screening, for
lease enforcement, or for eviction and include the following
information:
(i) Addresses or other information about where members of the
household are known to have lived.
(ii) If you intend to use the PHA determination regarding any such
sex offender registration information for applicant screening, your
request must include your standards in accordance with Sec. 5.855(c) for
prohibiting admission of persons subject to a lifetime sex offender
registration requirement.
(iii) If you intend to use the PHA determination regarding any such
sex offender registration information for eviction, your request must
include your standards for evicting persons subject to a lifetime
registration requirement in accordance with Sec. 5.858.
(iv) If you intend to use the PHA determination regarding any such
sex offender registration information for lease enforcement other than
eviction, your request must include your standards for lease enforcement
because of criminal activity by members of a household.
(4) PHA disclosure of records. The PHA must not disclose to the
owner any sex offender registration information obtained by the PHA
under this section.
(5) Fees. If an owner asks a PHA to obtain sex offender registration
information concerning a household member in accordance with this
section, the PHA may charge the owner reasonable fees for making the
request on behalf of the owner and for taking other actions for the
owner. The PHA may require the owner to reimburse costs incurred by the
PHA, including reimbursement of any fees charged to the PHA by a State
or local agency for releasing the information, the PHA's own related
staff and administrative costs. The owner may not pass along to the
applicant or tenant the costs of a sex offender registration records
check.
(c) Records management. (1) The PHA must establish and implement a
system of records management that ensures that any sex offender
registration information record received by the PHA from a State or
local agency under this section is:
(i) Maintained confidentially;
(ii) Not misused or improperly disseminated; and
(iii) Destroyed, once the purpose for which the record was requested
has been accomplished, including expiration of the period for filing a
challenge to the PHA action without institution of a challenge or final
disposition of any such litigation.
(2) The records management requirements do not apply to information
that is public information, or is obtained by a PHA other than under
this section.
(d) Opportunity to dispute. If a PHA obtains sex offender
registration information from a State or local agency under paragraph
(a) of this section showing that a household member is subject to a
lifetime sex offender registration requirement, the PHA must notify the
household of the proposed action to be based on the information and must
provide the subject of the record, and the applicant or tenant, with a
copy of such information, and an opportunity to dispute the accuracy and
relevance of the information. This opportunity must be provided before a
denial of admission, eviction or lease enforcement action on the basis
of such information.
PART 6--NONDISCRIMINATION IN PROGRAMS AND ACTIVITIES RECEIVING ASSISTANCE UNDER TITLE I OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974--Table of Contents
Subpart A--General Provisions
Sec.
6.1 Purpose.
6.2 Applicability.
6.3 Definitions.
6.4 Discrimination prohibited.
6.5 Discrimination prohibited--employment.
6.6 Records to be maintained.
Subpart B--Enforcement
6.10 Compliance information.
6.11 Conduct of investigations.
6.12 Procedure for effecting compliance.
6.13 Hearings and appeals.
[[Page 104]]
Authority: 42 U.S.C. 3535(d) 42 U.S.C. 5309.
Source: 64 FR 3797, Jan. 25, 1999, unless otherwise noted.
Subpart A--General Provisions
Sec. 6.1 Purpose.
The purpose of this part is to implement the provisions of section
109 of title I of the Housing and Community Development Act of 1974
(Title I) (42 U.S.C. 5309). Section 109 provides that no person in the
United States shall, on the ground of race, color, national origin,
religion, or sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity funded in whole or in part with Federal financial assistance.
Section 109 does not directly prohibit discrimination on the bases of
age or disability, and the regulations in this part 6 do not apply to
age or disability discrimination in Title I programs. Instead, section
109 directs that the prohibitions against discrimination on the basis of
age under the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) (Age
Discrimination Act) and the prohibitions against discrimination on the
basis of disability under section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794) (Section 504) apply to programs or activities funded in
whole or in part with Federal financial assistance. Thus, the
regulations of 24 CFR part 8, which implement Section 504 for HUD
programs, and the regulations of 24 CFR part 146, which implement the
Age Discrimination Act for HUD programs, apply to disability and age
discrimination in Title I programs.
Sec. 6.2 Applicability.
(a) This part applies to any program or activity funded in whole or
in part with funds under title I of the Housing and Community
Development Act of 1974, including Community Development Block Grants--
Entitlement, State and HUD-Administered Small Cities, and Section 108
Loan Guarantees; Urban Development Action Grants; Economic Development
Initiative Grants; and Special Purpose Grants.
(b) The provisions of this part and sections 104(b)(2) and 109 of
Title I that relate to discrimination on the basis of race shall not
apply to the provision of Federal financial assistance by grantees under
this title to the Hawaiian Homelands (42 U.S.C. 5309).
(c) The provisions of this part and sections 104(b)(2) and 109 of
Title I that relate to discrimination on the basis of race and national
origin shall not apply to the provision of Federal financial assistance
to grant recipients under the Native American Housing Assistance and
Self-Determination Act (25 U.S.C. 4101). See also, 24 CFR 1003.601(a).
Sec. 6.3 Definitions.
The terms Department, HUD, and Secretary are defined in 24 CFR part
5. Other terms used in this part 6 are defined as follows:
Act means the Housing and Community Development Act of 1974, as
amended (42 U.S.C. 5301-5320).
Assistant Secretary means the Assistant Secretary for Fair Housing
and Equal Opportunity.
Award Official means the HUD official who has been delegated the
Secretary's authority to implement a Title I funded program and to make
grants under that program.
Complete complaint means a written statement that contains the
complainant's name and address, identifies the Recipient against which
the complaint is made, and describes the Recipient's alleged
discriminatory action in sufficient detail to inform HUD of the nature
and date of the alleged violation of section 109. It shall be signed by
the complainant or by someone authorized to do so on his or her behalf.
Complaints filed on behalf of classes or third parties shall describe or
identify (by name, if possible) the alleged victims of discrimination.
Federal financial assistance means: (1) Any assistance made
available under title I of the Housing and Community Development Act of
1974, as amended, and includes income generated from such assistance,
and any grant, loan, contract, or any other arrangement, in the form of:
(i) Funds;
(ii) Services of Federal personnel; or
[[Page 105]]
(iii) Real or personal property or any interest in or use of such
property, including:
(A) Transfers or leases of the property for less than fair market
value or for reduced consideration; and
(B) Proceeds from a subsequent transfer or lease of the property if
the Federal share of its fair market value is not returned to the
Federal Government.
(2) Any assistance in the form of proceeds from loans guaranteed
under section 108 of the Act, but does not include assistance made
available through direct Federal procurement contracts or any other
contract of insurance or guaranty.
Program or activity (funded in whole or in part) means all of the
operations of--
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or local government; or
(ii) The entity of a State or local government that distributes
Federal financial assistance, and each department or agency (and each
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other post-secondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in section 198(a)(10) of
the Elementary and Secondary Education Act of 1965), system of
vocational education or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to the corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity that is described in paragraphs (1), (2), or
(3) of this definition, any part of which is extended Federal financial
assistance.
Recipient means any State, political subdivision of any State, or
instrumentality of any State or political subdivision; any public or
private agency, institution, organization, or other entity; or any
individual, in any State, to whom Federal financial assistance is
extended, directly or through another Recipient, for any program or
activity, or who otherwise participates in carrying out such program or
activity, including any successor, assign, or transferee thereof.
Recipient does not include any ultimate beneficiary under any program or
activity.
Responsible Official means the Assistant Secretary for Fair Housing
and Equal Opportunity or his or her designee.
Section 109 means section 109 of the Housing and Community
Development Act of 1974, as amended.
Title I means title I of the Housing and Community Development Act
of 1974 (42 U.S.C. 5301-5321).
Sec. 6.4 Discrimination prohibited.
(a) Section 109 requires that no person in the United States shall
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity funded in
whole or in part with Federal financial assistance, on the grounds of
race, color, national origin, religion, or sex.
(1) A Recipient under any program or activity to which this part
applies may not, directly or through contractual, licensing, or other
arrangements, take any of the following actions on the grounds of race,
color, national origin, religion, or sex:
(i) Deny any individual any facilities, services, financial aid, or
other benefits provided under the program or activity;
(ii) Provide any facilities, services, financial aid, or other
benefits that are different, or are provided in a different form, from
that provided to others under the program or activity;
(iii) Subject an individual to segregated or separate treatment in
any facility, or in any matter of process related to the receipt of any
service or benefit under the program or activity;
[[Page 106]]
(iv) Restrict an individual's access to, or enjoyment of, any
advantage or privilege enjoyed by others in connection with facilities,
services, financial aid or other benefits under the program or activity;
(v) Treat an individual differently from others in determining
whether the individual satisfies any admission, enrollment, eligibility,
membership, or other requirements or conditions that the individual must
meet in order to be provided any facilities, services, or other benefit
provided under the program or activity;
(vi) Deny an individual an opportunity to participate in a program
or activity as an employee;
(vii) Aid or otherwise perpetuate discrimination against an
individual by providing Federal financial assistance to an agency,
organization, or person that discriminates in providing any housing,
aid, benefit, or service;
(viii) Otherwise limit an individual in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by other individuals
receiving the housing, aid, benefit, or service;
(ix) Use criteria or methods of administration that have the effect
of subjecting persons to discrimination or have the effect of defeating
or substantially impairing accomplishment of the objectives of the
program or activity with respect to persons of a particular race, color,
national origin, religion, or sex; or
(x) Deny a person the opportunity to participate as a member of
planning or advisory boards.
(2) In determining the site or location of housing, accommodations,
or facilities, a Recipient may not make selections that have the effect
of excluding persons from, denying them the benefits of, or subjecting
them to discrimination on the ground of race, color, national origin,
religion, or sex. The Recipient may not make selections that have the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of section 109 and of this part 6.
(3)(i) In administering a program or activity in which the Recipient
has discriminated on the grounds of race, color, national origin,
religion or sex, the Recipient must take any necessary steps to overcome
the effects of prior discrimination.
(ii) In the absence of discrimination, a Recipient, in administering
a program or activity, may take any steps necessary to overcome the
effects of conditions that resulted in limiting participation by persons
of a particular race, color, national origin, religion, or sex.
(iii) After a finding of noncompliance, or after a Recipient has
reasonable cause to believe that discrimination has occurred, a
Recipient shall not be prohibited by this section from taking any action
eligible under subpart C of 24 CFR part 570 to ameliorate an imbalance
in benefits, services or facilities provided to any geographic area or
specific group of persons within its jurisdiction, where the purpose of
such action is to remedy discriminatory practices or usage.
(iv)(A) Notwithstanding anything to the contrary in this part,
nothing contained in this section shall be construed to prohibit any
Recipient from maintaining or constructing separate living facilities or
restroom facilities for the different sexes in order to protect personal
privacy or modesty concerns. Furthermore, selectivity on the basis of
sex is not prohibited when institutional or custodial services can, in
the interest of personal privacy or modesty, only be performed by a
member of the same sex as those receiving the services.
(B) Section 109 of the Act does not directly prohibit discrimination
on the basis of age or disability, but directs that the prohibitions
against discrimination on the basis of age under the Age Discrimination
Act and the prohibitions against discrimination on the basis of
disability under Section 504 apply to Title I programs and activities.
Accordingly, for programs or activities receiving Federal financial
assistance, the regulations in this part 6 apply to discrimination on
the bases of race, color, national origin, religion, or sex; the
regulations at 24 CFR part 8 apply to discrimination on the basis of
disability; and the regulations at 24 CFR part 146 apply to
discrimination on the basis of age.
(b) [Reserved]
[[Page 107]]
Sec. 6.5 Discrimination prohibited--employment.
(a) General. A Recipient may not, under any program or activity
funded in whole or in part with Federal financial assistance, directly
or through contractual agents or other arrangements including contracts
and consultants, subject a person to discrimination in the terms and
conditions of employment. Terms and conditions of employment include
advertising, interviewing, selection, promotion, demotion, transfer,
recruitment and advertising, layoff or termination, pay or other
compensation, including benefits, and selection for training.
(b) Determination of compliance status. The Assistant Secretary will
follow the procedures set forth in this part and 29 CFR part 1691 and
look to the substantive guidelines and policy of the Equal Employment
Opportunity Commission when reviewing employment practices under Section
109.
Sec. 6.6 Records to be maintained.
(a) General. Recipients shall maintain records and data as required
by 24 CFR 91.105, 91.115, 570.490, and 570.506.
(b) Employment. Recipients shall maintain records and data as
required by the Equal Employment Opportunity Commission at 29 CFR part
1600.
(c) Recipients shall make available such records and any supporting
documentation upon request of the Responsible Official.
(Approved by the Office of Management and Budget under control numbers
2506-0117 and 2506-0077)
Subpart B--Enforcement
Sec. 6.10 Compliance information.
(a) Cooperation and assistance. The Responsible Official and the
Award Official will provide assistance and guidance to Recipients to
help them comply voluntarily with this part.
(b) Access to data and other sources of information. Each Recipient
shall permit access by authorized representatives of HUD to its
facilities, books, records, accounts, minutes and audio tapes of
meetings, personnel, computer disks and tapes, and other sources of
information as may be pertinent to a determination of whether the
Recipient is complying with this part. Where information required of a
Recipient is in the exclusive possession of any other agency,
institution, or person, and that agency, institution, or person fails or
refuses to furnish this information, the Recipient shall so certify in
any requested report and shall set forth what efforts it has made to
obtain the information. Failure or refusal to furnish pertinent
information (whether maintained by the Recipient or some other agency,
institution, or person) without a credible reason for the failure or
refusal will be considered to be noncompliance under this part.
(c) Compliance data. Each Recipient shall keep records and submit to
the Responsible Official, timely, complete, and accurate data at such
times and in such form as the Responsible Official may determine to be
necessary to ascertain whether the Recipient has complied or is
complying with this part.
(d) Notification to employees, beneficiaries, and participants. Each
Recipient shall make available to employees, participants,
beneficiaries, and other interested persons information regarding the
provisions of this part and its applicability to the program or activity
under which the Recipient receives Federal financial assistance and make
such information available to them in such manner as the Responsible
Official finds necessary to apprise such persons of the protections
against discrimination assured them by Section 109 and this part.
Sec. 6.11 Conduct of investigations.
(a) Filing a complaint--(1) Who may file. Any person who believes
that he or she has been subjected to discrimination prohibited by this
part may file, or may have an authorized representative file on his or
her behalf, a complaint with the Responsible Official. Any person who
believes that any specific class of persons has been subjected to
discrimination prohibited by this part and who is a member of that class
or who is the authorized representative of a member of that class may
file a complaint with the Responsible Official.
[[Page 108]]
(2) Confidentiality. Generally, the Responsible Official shall hold
in confidence the identity of any person submitting a complaint, unless
the person submits written authorization otherwise. However, an
exception to maintaining confidentiality of the identity of the person
may be required to carry out the purposes of this part, including the
conduct of any investigation, hearing, or proceeding under this part.
(3) When to file. Complaints shall be filed within 180 days of the
alleged act of discrimination, unless the Responsible Official waives
this time limit for good cause. For purposes of determining when a
complaint is filed under this part, a complaint mailed to the
Responsible Official via the U.S. Postal Service will be deemed filed on
the date it is postmarked. A complaint delivered to the Responsible
Official in any other manner will be deemed filed on the date it is
received by the Responsible Official.
(4) Where to file complaints. Complaints must be in writing, signed,
addressed to the Responsible Official, and filed with (mailed to or
otherwise delivered to) the Office of Fair Housing and Equal Opportunity
at any HUD Office.
(5) Content of complaints. Each complaint should contain the
complainant's name, address, and phone number; a description or name, if
available, of the Recipient alleged to have violated this part; an
address where the violation occurred; and a description of the
Recipient's alleged discriminatory action in sufficient detail to inform
the Responsible Official of the nature and date of the alleged violation
of this part.
(6) Amendments to complaints. Amendments to complaints, such as
clarification and amplification of allegations in a complaint or the
addition of other Recipients, may be made by the complainant or the
complainant's authorized representative at any time while the complaint
is being considered, and any amendment shall be deemed to be made as of
the original filing date.
(7) Notification. To the extent practicable, the Responsible
Official will notify the complainant and the Recipient of the
Responsible Official's receipt of a complaint within 10 calendar days of
receipt of a complete complaint. If the Responsible Official receives a
complaint that is not complete, the Responsible Official will notify the
complainant and specify the additional information that is needed to
make the complaint complete. If the complainant fails to complete the
complaint, the Responsible Official will close the complaint without
prejudice and notify the complainant. When a complete complaint has been
received, the Responsible Official, or his or her designee, will assess
the complaint for acceptance, rejection, or referral to an appropriate
Federal agency within 20 calendar days.
(8) Resolution of complaints. After the acceptance of a complete
complaint, the Responsible Official will investigate the complaint,
attempt informal resolution, and, if resolution is not achieved, the
Responsible Official will notify the Recipient and complainant, to the
extent practicable within 180 days of the receipt of the complete
complaint, of the results of the investigation in a letter of findings
sent by certified mail, return receipt requested, containing the
following:
(i) Findings of fact and a finding of compliance or noncompliance;
(ii) A description of an appropriate remedy for each violation
believed to exist; and
(iii) A notice of the right of the Recipient and the complainant to
request a review of the letter of findings by the Responsible Official.
A copy of the final investigative report will be made available upon
request.
(b) Compliance reviews--(1) Periodic compliance reviews. The
Responsible Official may periodically review the practices of Recipients
to determine whether they are complying with this part and may conduct
on-site reviews. The Responsible Official will initiate an on-site
review by sending to the Recipient a letter advising the Recipient of
the practices to be reviewed; the programs affected by the review; and
the opportunity, at any time before a final determination, to submit
information that explains, validates, or otherwise addresses the
practices under review. In addition, the Award Official will include, in
normal program compliance
[[Page 109]]
reviews and monitoring procedures, appropriate actions to review and
monitor compliance with general or specific program requirements
designed to implement the requirements of this part.
(2) Time period of the review. (i) For the Entitlement program,
compliance reviews will cover the three years before the date of the
review.
(ii) For the Urban Development Action Grant (UDAG) program, the
compliance review is applicable only to UDAG loan repayments or other
payments or revenues classified as program income. UDAG repayments or
other payments or revenues classified as miscellaneous revenue are not
subject to compliance review under this part. (See 24 CFR 570.500(a).)
The compliance review will cover the time period that program income is
being repaid.
(iii) For the State and HUD-Administered Small Cities programs, the
compliance review will cover the four years before the date of the
review.
(iv) For all other programs, the time period covered by the review
will be four years before the date of the review.
(v) On a case-by-case basis, at the discretion of the Responsible
Official, the above time frames for review can be expanded where facts
or allegations warrant further investigation.
(3) Early compliance resolution. On the last day of the on-site
visit, after the compliance review, the Recipient will be given an
opportunity to supplement the record. Additionally, a prefinding
conference may be held and a summary of the proposed findings may be
presented to the Recipient. In those instances where the issue(s) cannot
be resolved at a prefinding conference or with the supplemental
information, a meeting will be scheduled to attempt a voluntary
settlement.
(4) Notification of findings. (i) The Assistant Secretary will
notify the Recipient of Federal financial assistance of the results of
the compliance review in a letter of findings sent by certified mail,
return receipt requested.
(ii) Letter of findings. The letter of findings will include the
findings of fact and the conclusions of law; a description of a remedy
for each violation found; and a notice that a copy of HUD's final report
concerning its compliance review will be made available, upon request,
to the Recipient.
(c) Right to a review of the letter of findings. (1) Within 30 days
of receipt of the letter of findings, any party may request that a
review be made of the letter of findings, by mailing or delivering to
the Responsible Official, Room 5100, Office of Fair Housing and Equal
Opportunity, HUD, Washington, DC 20410, a written statement of the
reasons why the letter of findings should be modified.
(2) The Responsible Official will send by certified mail, return
receipt requested, a copy of the request for review to all parties.
Parties other than the party requesting review and HUD shall have 20
days from receipt to respond to the request for review.
(3) The Responsible Official will either sustain or modify the
letter of findings or require that further investigation be conducted,
within 60 days of the request for review. The Responsible Official's
decision shall constitute the formal determination of compliance or
noncompliance.
(4) If no party requests that the letter of findings be reviewed,
the Responsible Official, within 14 calendar days of the expiration of
the time period in paragraph (a)(9)(i) of this section, will send a
formal written determination of compliance or noncompliance to all
parties.
(d) Voluntary compliance time limits. The Recipient will have 10
calendar days from receipt of the letter of findings of noncompliance,
or such other reasonable time as specified in the letter, within which
to agree, in writing, to come into voluntary compliance or to contact
the Responsible Official for settlement discussions. If the Recipient
fails to meet this deadline, HUD will proceed in accordance with
Secs. 6.12 and 6.13.
(e) Informal resolution/voluntary compliance--(1) General. It is the
policy of HUD to encourage the informal resolution of matters. A
complaint or a compliance review may be resolved by informal means at
any time. If a letter of findings is issued, and the letter makes a
finding of noncompliance, the
[[Page 110]]
Responsible Official will attempt to resolve the matter through a
voluntary compliance agreement.
(2) Objectives of informal resolution/voluntary compliance. In
attempting informal resolution, the Responsible Official will attempt to
achieve a just resolution of the matter and to obtain assurances, where
appropriate, that the Recipient will satisfactorily remedy any
violations of the rights of any complainant, and will take such action
as will assure the elimination of any violation of this part or the
prevention of the occurrence of such violation in the future. If a
finding of noncompliance has been made, the terms of such an informal
resolution shall be reduced to a written voluntary compliance agreement,
signed by the Recipient and the Responsible Official, and be made part
of the file. Such voluntary compliance agreements shall seek to protect
the interests of the complainant (if any), other persons similarly
situated, and the public.
(3) Right to file a private civil action. At any time in the
process, the complainant has the right to file a private civil action.
If the complainant does so, the Responsible Official has the discretion
to administratively close the investigation or continue the
investigation, if he or she decides that it is in the best interests of
the Department to do so. If the Responsible Official makes a finding of
noncompliance and an agreement to voluntarily comply is not obtained
from the Recipient, the procedures at Secs. 6.12 and 6.13 for effecting
compliance shall be followed.
(f) Intimidatory or retaliatory acts prohibited. No Recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any person for the purpose of interfering with any right or privilege
secured by this part, or because he or she has made a complaint,
testified, assisted, or participated in any manner in an investigation,
compliance review, proceeding, or hearing under this part.
Sec. 6.12 Procedure for effecting compliance.
(a) Whenever the Assistant Secretary determines that a Recipient of
Federal financial assistance has failed to comply with Section 109(a) or
this part and voluntary compliance efforts have failed, the Secretary
will notify the Governor of the State or the Chief Executive Officer of
the unit of general local government of the findings of noncompliance
and will request that the Governor or the Chief Executive Officer secure
compliance. If within a reasonable period of time, not to exceed 60
days, the Governor or the Chief Executive Officer fails or refuses to
secure compliance, the Secretary will:
(1) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted;
(2) Exercise the powers and functions provided by Title VI;
(3) Terminate or reduce payments under Title I, or limit the
availability of payments under Title I to programs or activities not
affected by the failure to comply; or
(4) Take such other actions as may be provided by law, including but
not limited to, the initiation of proceedings under 24 CFR part 24 or
any applicable proceeding under State or local law.
(b) Termination, reduction, or limitation of the availability of
Title I payments. No order terminating, reducing, or limiting the
availability of Title I payments under this part shall become effective
until:
(1) The Secretary has notified the Governor of the State or the
Chief Executive Officer of the unit of general local government of the
Recipient's failure to comply in accordance with paragraph (a) of this
section and of the termination, reduction or limitation of the
availability of Title I payments to be taken;
(2) The Secretary has determined that compliance cannot be secured
by voluntary means;
(3) The Recipient has been extended an opportunity for a hearing in
accordance with Sec. 6.13(a); and
(4) A final agency notice or decision has been rendered in
accordance with paragraph (c) of this section or 24 CFR part 180.
(c) If a Recipient does not respond to the notice of opportunity for
a hearing or does not elect to proceed with a hearing within 20 days of
the issuance of the Secretary's actions listed in
[[Page 111]]
paragraphs (b)(1), (2) and (3) of this section, then the Secretary's
approval of the termination, reduction or limitation of the availability
of Title I payments is considered a final agency notice and the
Recipient may seek judicial review in accordance with section 111(c) of
the Act.
Sec. 6.13 Hearings and appeals.
(a) When a Recipient requests an opportunity for a hearing, in
accordance with Sec. 6.12(b)(3), the General Counsel will follow the
notification procedures set forth in 24 CFR 180.415. The hearing, and
any petition for review, will be conducted in accordance with the
procedures set forth in 24 CFR part 180.
(b) After a hearing is held and a final agency decision is rendered
under 24 CFR part 180, the Recipient may seek judicial review in
accordance with section 111(c) of the Act.
PART 7--EQUAL EMPLOYMENT OPPORTUNITY; POLICY, PROCEDURES AND PROGRAMS--Table of Contents
Subpart A--Equal Employment Opportunity Without Regard to Race, Color,
Religion, Sex, National Origin, Age, Disability or Reprisal
General Provisions
Sec.
7.1 Policy.
7.2 Definitions.
7.3 Designations.
7.4 Affirmative employment programs.
7.5 EEO Alternative Dispute Resolution Program.
Responsibilities
7.10 Responsibilities of the Director of EEO.
7.11 Responsibilities of the EEO Officers.
7.12 Responsibilities of the EEO Counselors.
7.13 Responsibilities of the Assistant Secretary for Administration.
7.14 Responsibilities of the Office of Human Resources.
7.15 Responsibilities of managers and supervisors.
7.16 Responsibilities of employees.
Pre-Complaint Processing
7.25 Pre-complaint processing.
7.26 EEO Alternative Dispute Resolution Program.
Complaints
7.30 Presentation of complaint.
7.31 Who may file a complaint, with whom filed, and time limits.
7.32 Representation and official time.
7.33 Contents of the complaints.
7.34 Acceptability.
7.35 Processing.
7.36 Hearing.
7.37 Final action.
7.38 Appeals.
Other Complaint and Appeal Procedures
7.39 Negotiated grievance, MSPB appeal and administrative grievance
procedures.
Remedies, Enforcement and Compliance
7.40 Remedies and enforcement.
7.41 Compliance with EEOC final decisions.
7.42 Enforcement of EEOC final decisions.
7.43 Settlement agreements.
7.44 Interim relief.
Statistics and Reporting Requirements
7.45 EEO group statistics and reports.
Subpart B [Reserved]
Authority: 29 U.S.C. 206(d), 633a, 791 and 794; 42 U.S.C. 2000e
note, 2000e-16, 42 U.S.C. 3535(d); E.O. 11478 of Aug. 8, 1969; 34 FR
19285, Aug. 12, 1969; E.O. 10577, 3 CFR 1954-1958; E.O. 11222, 3 CFR
1964-1965.
Source: 66 FR 20564, Apr. 23, 2001, unless otherwise noted.
Subpart A--Equal Employment Opportunity Without Regard to Race, Color
Religion, Sex, National Origin, Age, Disability or Reprisal
General Provisions
Sec. 7.1 Policy.
The Department's equal employment opportunity policy conforms with
the policies expressed in title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000d-2000d-4); the Civil Rights Act of 1991; Executive Order
11478 of 1969 (34 FR 12985, 3 CFR 1966-1970 Comp., p. 803); the Age
Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. et seq.); the
Equal Pay Act of 1963 (29 U.S.C. 206d); sections 501 and 504 of the
Rehabilitation Act of 1973, and reaffirming Executive Order 12871 (29
U.S.C. 791, 794); the Civil Service Reform Act of 1978 (5 U.S.C. 1101 et
seq.); Executive Order 13087 of 1998 (63 FR 30097); and with the EEOC's
implementing regulations, codified under 29 CFR part 1614.
[[Page 112]]
It is HUD's policy to provide equality of opportunity in employment in
the Department for all persons; to prohibit discrimination on the basis
of race, color, religion, sex, national origin, age, disability or
reprisal in all aspects of its personnel policies, programs, practices,
and operations and in all its working conditions and relationships with
current or former employees and applicants for employment; and to
promote the full realization of equal opportunity in employment through
continuing programs of affirmative employment at every level within the
Department. Procedures for filing EEO claims are found in the EEOC
regulations at 29 CFR part 1614. HUD is committed to promoting
affirmative employment through the removal of barriers and by positive
actions at every level, including the early resolution of EEO disputes.
Sec. 7.2 Definitions.
AE means affirmative employment.
Aggrieved individual means a person who suffers a present harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. The terms ``aggrieved individual'' and
``aggrieved person'', as used in this part, are interchangeable.
Alternative Dispute Resolution (ADR) means a variety of approaches
used to resolve conflict rather than traditional adjudicatory or
adversarial methods such as litigation, hearings, and administrative
processing and appeals. The approaches used may include, but are not
limited to: negotiation, conciliation, facilitation, mediation, fact-
finding, peer review, mini-trial, arbitration, or ombudsman.
Claim means action the agency has taken or is taking that causes the
aggrieved person to believe that he or she is a victim of
discrimination. This term replaces the formerly used term ``allegation''
and is used interchangeably with the term ``issue''.
Comparable means a person designated as head of an organizational
unit that is analogous to that headed by an Assistant Secretary.
Conflict-of-interest complaint means an EEO complaint arising in the
Department which names the Director of EEO or the Deputy Director of
EEO, or both, as the responsible management officials.
Director of Equal Employment Opportunity (EEO) means the Director of
HUD's Office of Departmental Equal Employment Opportunity who is also
designated as the Director of EEO in this part.
Disability means the same as the term ``handicap'' under EEOC's
regulations at 29 part 1614.
Discrimination Complaint Manager (DCM) means the designee, appointed
by the Assistant Secretary (EEO Officer) or the Assistant Secretary's
comparable, who assists the EEO Officer in discharging his or her EEO
responsibilities and is responsible for carrying out the EEO
discrimination complaint process for the organizational unit pursuant to
the applicable civil rights laws, the regulations at 29 CFR part 1614
and this part.
Diversity Program Manager means the designee appointed by the
Assistant Secretary (EEO Officer) or the Assistant Secretary's
comparable who assists the EEO Officer in promoting appreciation of the
contributions of women, minorities, and persons with disabilities, and
in promoting the value of all Department employees.
EEO means equal employment opportunity.
EEO Officer Pro Tem means the Chief of Staff or an official at a
neutral federal agency designated to process an EEO claim that would be
a conflict of interest for the Director of EEO or the Deputy Director of
EEO, or both.
EEOC and Commission mean the Equal Employment Opportunity
Commission.
Final action means the Department's issuance of a final decision or
final order.
Final decision means HUD's determination of the findings of fact and
law on the merits or the procedural issues of an EEO complaint based
upon the available record.
Final order means the Department's final action which states whether
the Department will fully implement the decision or order of an EEOC
Administrative Judge, or both.
Neutral means an individual who mediates or otherwise functions to
specifically aid the parties in resolving the issues, and has no
official, financial, or
[[Page 113]]
personal conflict of interest with respect to the issues being disputed,
unless such interest is fully disclosed in writing to all parties and
all parties agree that the neutral may serve.
Organizational unit means the jurisdictional area of the
Department's program offices such as the Office of the Secretary, the
Office of General Counsel, etc.
Record means all documents related to the EEO complaint as outlined
in EEOC Management Directive 110.
Reprisal means the action taken against a current or former employee
or applicant in retaliation for previous EEO participation in protected
EEO activity or for opposing employment practice or policy illegal under
EEO statutes. The terms ``reprisal'' and ``retaliation'' are used
interchangeably.
Sec. 7.3 Designations.
(a) Director of Equal Employment Opportunity. The Director of the
Office of Departmental Equal Employment Opportunity (ODEEO) is
designated as the Director of EEO, except for complaints naming the
Director or Deputy Director of Departmental EEO, or both, as the
responsible management official(s) in complaints arising in the ODEEO
which present a conflict-of-interest. In such cases, the Director of EEO
may:
(1) Transfer the case to the Chief of Staff for processing; or
(2) On behalf of the Department, enter into an agreement with one or
more federal agencies for processing of the Department's conflict-of-
interest cases by the designated federal official chosen to serve as the
EEO Officer Pro Tem.
(b) Deputy Director of Equal Employment Opportunity. The Deputy
Director of the ODEEO is designated as the Deputy Director of EEO and
acts in the absence of the Director of EEO.
(c) Equal Employment Opportunity Officer. The Director of EEO shall
designate the Assistant Secretary or the Assistant Secretary's
comparable as EEO Officer for the Department's respective organizational
units for complaints arising in the respective Assistant Secretary's or
Assistant Secretary's comparable organizational unit.
(d) Equal Employment Opportunity Discrimination Complaint Manager
(DCM). Each Assistant Secretary (EEO Officer) shall designate a DCM to
represent the organizational unit in EEO matters and assist the EEO
Officer in carrying out EEO responsibilities. The DCM shall be the
Administrative Officer (AO) for the organizational unit or another
designee of the EEO Officer.
Sec. 7.4 Affirmative employment programs.
The Office of the Secretary, each Assistant Secretary, the General
Counsel, the Inspector General, the President of the Government National
Mortgage Association, the Chief Financial Officer, the Chief Procurement
Officer, the Chief Information Officer, the Director of Lead Hazard
Control, the Director of the Office of Multifamily Housing Assistance
Restructuring, the Director of the Departmental Enforcement Center, the
Director of the Real Estate Assessment Center, and the Director of the
Office of Federal Housing Enterprise Oversight and other positions that
may be established and are comparable to an Assistant Secretary, shall
establish, maintain and carry out a plan of affirmative employment (AE)
to promote equal opportunity in every aspect of employment policy and
practice. Each plan shall identify instances of under-representation of
minorities, women and persons with disabilities, recognize situations or
barriers that impede equality of opportunity, and include objectives and
action items targeted to eliminate any employment, training,
advancement, and retention issues which adversely affect minorities,
women and persons with disabilities. Each plan must be consistent with
29 CFR part 1614, is subject to approval by the Director of EEO and
shall be developed within the framework of Department-wide guidelines
published by the Director of EEO.
Sec. 7.5 EEO Alternative Dispute Resolution Program.
In accordance with the Secretary's Policy Statement regarding
Alternative Dispute Resolution (ADR) located on the Department's website
and 29 CFR 1614.102(b)(2), the Department shall establish and maintain
an ADR
[[Page 114]]
program that addresses, at a minimum, EEO matters at the pre-complaint
and formal complaint stages of the EEO process. ADR is a non-adversarial
process that does not render a judgment with respect to the dispute.
With the assistance of an impartial and neutral third party, ADR offers
parties involved the opportunity to reach early and informal resolution
of EEO matters in a mutually satisfactory fashion.
(a) Program availability. In appropriate cases, the EEO ADR Program
is made available to an aggrieved person or Complainant during the pre-
complaint and the formal complaint processing periods. Participation in
the program by the parties is knowing and voluntary. Agency managers
have a duty to cooperate in an ADR proceeding once the agency has
determined that a matter is appropriate for ADR and the aggrieved
person/complainant has elected to participate in ADR. At the formal
stage, the complainant may request participation in the ADR Program.
However, a determination of the appropriateness of ADR at the time of
the request will be made on a case-by-case basis by the appropriate
ODEEO official designated by the Director of EEO and does not affect the
processing of the formal complaint, including the investigation.
(b) EEO ADR program procedures. The ODEEO shall establish and
maintain all EEO ADR Program procedures which include appropriate
consultations.
(c) ADR training. Training and education on the EEO ADR Program will
be provided to all Department employees, managers and supervisors, and
other persons protected under the applicable laws.
(d) Pre-complaint ADR election process. The appropriateness of a
particular EEO matter or EEO complaint for the Department's ADR Program
shall be determined on a case-by-case basis by the ODEEO official
designated by the Director of EEO. The EEO Counselor shall advise the
aggrieved person that the aggrieved person may choose between
participation in the EEO ADR Program or the EEO traditional counseling
activities provided for at 29 CFR 1614.105(c). The aggrieved person's
election to proceed through ADR instead of EEO counseling is final.
(e) ADR counseling requirements. (1) The minimum information to be
provided by the EEO Counselor about the Department's ADR Program
includes the following:
(i) Definition of the term ADR;
(ii) An explanation of the stages in the EEO process at which ADR
may be available;
(iii) A description of the ADR technique(s) used by the Department;
(iv) A description of how the program is consistent with the EEO ADR
core principles that ensure fairness and require voluntariness,
neutrality, confidentiality, and enforceability;
(v) An explanation of procedural and substantive alternatives; and
(vi) All time frames for the EEO administrative process including
ADR.
(2) The EEO Counselor shall have no further involvement in resolving
the EEO matter after the referral to the EEO ADR program.
(f) Extension of pre-complaint processing period for ADR. Where the
aggrieved person chooses to participate in ADR, the pre-complaint
processing period shall not exceed 90 days from the date of initial
contact with the EEO Office.
(1) The aggrieved person shall be informed in writing by the EEO
Counselor, no later than the thirtieth day after contacting the EEO
Counselor, of the right to file a discrimination complaint, if the
matter presented by the aggrieved person has not been resolved.
(2) Prior to the end of the 30-day period from the date of initial
contact with the EEO Office, the aggrieved person may agree, in writing,
with the Department to postpone the final interview and extend the pre-
complaint period for an additional period of no more than 60 days if the
matter is not resolved. If the matter has not been resolved before the
conclusion of the agreed extension, the notice of right to file a
discrimination complaint shall be issued no later than the 90th day of
initial contact with the EEO Office. The notice shall inform the
aggrieved person of the right to file a discrimination complaint within
15 days of receipt of the notice, of the appropriate official with whom
to file a complaint and of
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the aggrieved person's duty to assure that the Department is informed
immediately if the aggrieved person retains counsel or a representative
and if the aggrieved person changes address.
(g) EEO ADR Program's relationship to negotiated grievance, MSPB
appeal and administrative grievance procedures. Participation in the EEO
ADR program does not preclude the aggrieved person or Complainant from
exercising rights under any of the Department's other complaint or
appeal procedures, when no resolution is reached. When participation in
ADR results in a settlement agreement and the aggrieved person or
Complainant believes the Department has failed to comply with its terms,
the aggrieved person or Complainant may exercise the right of appeal
pursuant to 29 CFR 1614.504.
Responsibilities
Sec. 7.10 Responsibilities of the Director of EEO.
The Director and Deputy Director of EEO are responsible for:
(a) Advising the Secretary with respect to the preparation of plans,
procedures, regulations, reports, and other matters pertaining to the
Government's equal employment opportunity policy and the Department's
EEO/ADR/AE programs;
(b) Developing and maintaining plans, procedures, and regulations
necessary to carry out the Department's EEO programs, including a
Department-wide program of affirmative employment developed in
coordination with other officials; and approving programs of affirmative
employment established by each EEO Officer or comparable organizational
head;
(c) Evaluating, at least annually, the sufficiency of each
organizational unit's EEO/ADR/AE program and providing reports thereon
to the Secretary with recommendations as to any improvement or
correction needed, including remedial or disciplinary action with
respect to managerial or supervisory employees who have failed in their
responsibility;
(d) Appraising the Department's personnel operations at regular
intervals to ensure their conformity with the policies of the
Government's and the Department's EEO program;
(e) Making changes in programs and procedures designed to eliminate
discriminatory practices and improve the Department's EEO/ADR/AE
programs;
(f) Selecting EEO Counselors;
(g) Providing for counseling by an EEO Counselor to a current or
former employee or applicant for employment who believes that he or she
has been discriminated against because of race, color, religion, sex,
national origin, age, disability, or in retaliation for participation in
protected EEO activity; or for opposing a policy or practice illegal
under EEO statutes;
(h) Providing for the prompt, fair and impartial processing of
individual complaints involving claims of discrimination within the
Department subject to 29 CFR part 1614;
(i) Making the final decision on discrimination complaints and
ordering such corrective measures as may be necessary, including
disciplinary action warranted in circumstances where an employee has
been found to have engaged in a discriminatory practice.
(j) Executing settlement agreements to resolve EEO complaints;
(k) Making available an ADR Program for EEO matters at both the pre-
complaint and formal EEO complaint stages of the EEO administrative
process;
(l) Developing and providing annual mandatory EEO and ADR training
for EEO Counselors, and all supervisors and managers in conjunction with
HUD Training Academy, Office of Human Resources, and the Office of
General Counsel, other federal agencies and resources with ADR
information and expertise; and
(m) Publicizing to all employees and posting at all times the names,
business telephone numbers and addresses of the EEO Counselors, EEO
Director, EEO Officers, and Diversity Program Managers, notice of EEO
complaint processing time limits and the requirements of contacting an
EEO Counselor and completing the counseling phase before filing a
complaint.
Sec. 7.11 Responsibilities of the EEO Officers.
Each EEO Officer is responsible for:
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(a) Advising the Director of EEO on all matters affecting the
implementation of the Department's EEO/ADR/AE policies and programs in
the organizational unit;
(b) Developing and maintaining a program of affirmative employment
for the organizational unit and ensuring that the program is carried out
in an exemplary manner;
(c) Publicizing to all employees of the organizational unit the name
and address of the Director of EEO, the EEO Officer(s), and the EEO
Counselor(s), the EEO Discrimination Complaint Manager(s), the
Affirmative Employment Program (AEP) Manager, the Diversity Program
Manager, ADR Officials, and the EEO complaint procedures;
(d) Informing all managers and supervisors in the organizational
unit of the responsibilities and objectives of the EEO Counselors, DCMs,
ADR officials, EEO investigators, and of the EEO complaint process and
the importance of cooperating and coordinating with all appropriate
Department personnel to informally find solutions to problems brought to
the EEO Officer's attention by current or former employees and
applicants;
(e) Evaluating and documenting the performance by the managers and
supervisors in the organizational unit in carrying out their
responsibilities under this subpart;
(f) Seeking a resolution of EEO matters brought to their attention;
(g) Designating a senior level Affirmative Employment Program (AEP)
Manager in Headquarters responsible for preparing the AEP plan; managing
the plan; providing advice and guidance to managers and supervisors in
removing barriers to EEO/AE/ADR and in implementing all of their EEO/AE
responsibilities; and reviewing all recruitment and personnel actions
taken by managers and supervisors to ensure the achievement of AEP
objectives;
(h) Designating the Administrative Officer (AO) or other
Headquarters organizational unit official as the DCM to manage and
direct the organization's EEO responsibilities. In making such
designation, the EEO Officer shall ensure that the designation as the
DCM does not otherwise conflict with the official duties of the employee
so designated;
(i) Designating a senior level Diversity Program Manager in HUD
Headquarters to manage and direct the organization's Diversity Program
and providing resources for diversity activities for its employees;
(j) Ensuring the successful operation of the EEO/AE/ADR Program by
requiring management's support;
(k) Approving and making reasonable accommodation to the known
physical or mental limitations of qualified employees with disabilities
unless the accommodation would impose an undue hardship on the
operations of Department; and
(l) Adhering to and implementing the Department's policy on
religious accommodation.
Sec. 7.12 Responsibilities of the EEO Counselors.
The EEO Counselor is responsible for counseling and attempting
resolution of matters brought to the EEO Counselor's attention pursuant
to Secs. 7.25 and 7.30 and 29 CFR part 1614, by any current or former
employee or applicant for employment who believes that he or she has
been discriminated against because of race, color, religion, sex,
national origin, age, disability or in reprisal for participating in EEO
activity or opposing policies and practices that are illegal under the
EEO statutes. These responsibilities include, but are not limited to:
(a) Advising individuals, in writing, of their rights and
responsibilities, including:
(1) The right to request a hearing and decision from EEOC or an
immediate final decision from the agency after an investigation;
(2) Election rights;
(3) The right to file a notice of intent to sue and a lawsuit under
the ADEA instead of an administrative complaint of age discrimination;
and
(4) The duty to mitigate damages;
(5) Relevant time frames.
(b) EEO Counselors shall advise aggrieved persons that only the
claims raised in pre-complaint counseling (or issues or claims like or
related to
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claims raised in pre-complaint counseling) may be alleged in a
subsequent complaint filed with the Department.
(c) EEO Counselors shall advise aggrieved persons of their duty to
keep the Department and EEOC informed of their current address and the
name of the representative, if applicable, and to serve copies of
hearing and appeal notices on the Department.
(d) EEO Counselors shall provide to the aggrieved person the notice
of the right to file an individual or a class complaint. If the
aggrieved person informs the EEO Counselor that the aggrieved person
wishes to file a class complaint, the EEO Counselor shall explain the
class complaint procedures and the responsibilities of a class agent and
provide class complaint counseling prior to the issuance of the notice
of right to file a complaint.
(e) EEO Counselors shall advise aggrieved persons that, where the
Department agrees to offer ADR in a particular case, they may choose
between participation in the EEO ADR Program and the traditional EEO
counseling process. The EEO Counselor shall conduct the final interview
with the aggrieved person within 30 days of the date the aggrieved
person initially contacted the Department's EEO office to request
counseling, unless the aggrieved person agrees to a longer counseling
period or if the aggrieved person elects the ADR program and agrees to
extend the initial 30-day pre-complaint period for an additional period
of no more than 60 days.
(f) If the matter has not been resolved before the conclusion of the
agreed extension, the EEO Counselor shall issue the notice of right to
file a discrimination complaint no later than the 90th day of the
aggrieved person's initial contact with the EEO Office. The notice shall
inform the aggrieved person of the right to file a discrimination
complaint within 15 days of receipt of the notice; of the appropriate
official with whom to file a complaint; and of the aggrieved person's
duty to assure that the Department is informed immediately if the
aggrieved person retains counsel or a representative and if the
aggrieved person changes address.
(g) EEO Counselors shall prepare a report sufficient to document the
fact that the required counseling actions were taken and an attempt to
resolve any jurisdictional questions was made. The report shall include
a precise description of the claim(s) and the basis(es) identified by
the aggrieved person; pertinent documents gathered during the inquiry,
specific information concerning timeliness of the initial counseling
contact, and a statement as to whether a resolution attempt was
undertaken, and if so, the disposition.
(h) EEO Counselors shall not attempt in any way to dissuade the
aggrieved person from filing an EEO complaint. The EEO Counselor shall
not reveal to the responsible management officials the identity of an
aggrieved person who consulted the EEO Counselor, except when authorized
to do so by the aggrieved person, or until the Department has received a
formal discrimination complaint from that person involving that same
matter.
Sec. 7.13 Responsibilities of the Assistant Secretary for Administration.
The Assistant Secretary for Administration shall:
(a) Provide leadership in developing and maintaining personnel
management policies, programs, automated systems and procedures which
will promote continuing affirmative employment to ensure equal
opportunity in the recruitment, selection, placement, training, awards,
recognition and promotion of employees, including an applicant flow
tracking system;
(b) Provide positive assistance and guidance to organizational units
and personnel offices to ensure the effective implementation of the
personnel management policies, programs, automated systems, and EEO
procedures;
(c) Participate at the national level with other government
departments and agencies, other employers, and other public and private
groups, in cooperative action to improve employment opportunities and
community conditions which affect employability;
(d) Prepare and implement plans for recruitment and reports in
accordance with the Federal Equal Opportunity Recruitment Program
(FEORP) and
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the Disabled Veterans Affirmative Action Program (DVAAP);
(e) Provide reasonable accommodations to the known physical or
mental limitations of qualified employees with disabilities unless the
accommodations would impose an undue hardship on the operation of the
Department's programs;
(f) Adhere to and implement the Department's policy on religious
accommodation;
(g) Designate a senior level Disability Program Manager to promote
EEO/ADR/AE for persons with disabilities; to assure the accessibility of
all HUD facilities and programs; and to manage the resources for
providing reasonable accommodation;
(h) In conjunction with the Director of EEO, provide and coordinate
mandatory EEO Counselor training;
(i) Provide and coordinate mandatory supervisors' and managers' EEO/
AE/ADR training;
(j) Provide applicant data to ODEEO for analysis; and
(k) Designate a DCM to represent the organizational unit in EEO
matters. The DCM shall be the AO for the organizational unit or another
designee of the EEO Officer.
Sec. 7.14 Responsibilities of the Office of Human Resources.
In accordance with guidelines issued by the Assistant Secretary for
Administration, Human Resources Officers shall:
(a) Appraise job structure and employment practices to ensure
equality of opportunity for all employees to participate fully on the
basis of merit in all occupations and levels of responsibility;
(b) Communicate the Department's EEO policy and program and its
employment needs to all sources of job candidates without regard to
race, color, religion, sex, national origin, disability, or age and
solicit their recruitment assistance on a continuing basis;
(c) Upon request, provide personnel information to EEO Counselors
and other authorized officials or agents of the agency who are involved
in the processing of a discrimination complaint;
(d) Evaluate hiring methods and practices to ensure impartial
consideration for all job applicants;
(e) Ensure that new employee orientation programs contain
appropriate references to the Department's EEO/ADR/AE policies,
procedures and programs and accomplishment of EEO objectives under the
Department's Performance, Accountability, Communications System (PACS)
or other Departmental performance appraisal system;
(f) Participate in the preparation and distribution of such
educational materials as may be necessary to adequately inform all
employees of their rights and responsibilities as described in this
part, including the Department's EEO program directives;
(g) In coordination with the Director of the HUD Training Academy,
develop an on-going training program for supervisors and managers to
ensure understanding of the Departmental EEO/ADR/AE programs, policy and
other requirements which foster effective teamwork and high morale;
(h) In coordination with the Director of the HUD Training Academy,
the Office of General Counsel, the Office of Administration and the
Director of EEO, develop an on-going training program for managers and
supervisors to ensure understanding of the Department's EEO and ADR
programs. At a minimum, the training should include:
(1) The Civil Rights Act of 1964 (42 U.S.C. 2000d);
(2) Sections 501 and 504 of the Rehabilitation Act of 1973 (29
U.S.C. 791, 794);
(3) The Administrative Dispute Resolution Act of 1996 (5 U.S.C. 556,
571) and its amendments emphasizing the federal government's interest in
encouraging mutual resolution of disputes and the benefits associated
with using ADR;
(4) EEOC's regulations and policy guidance concerning EEO, AE and
ADR;
(5) The ADR methods employed by the Department;
(6) An explanation of how to draft a settlement agreement that
complies with the standards required by ODEEO and 29 CFR part 1614;
[[Page 119]]
(7) An explanation of the recourse available where noncompliance by
the Department is alleged; and
(8) Training on EEO policy, programs and procedures;
(i) In coordination with the Director of the HUD Training Academy,
the Office of General Counsel, the Office of Administration, and the
Director of EEO, the Department may enter into agreements to have EEO/
AE/ADR mandatory annual supervisory and management training provided by
other federal agencies or other resources;
(j) Decide all personnel actions on merit principles and in a manner
which will demonstrate affirmative EEO for the organization;
(k) Ensure to the greatest possible utilization and development of
the skills and potential abilities of all employees;
(l) Track applicant flow and promptly take or recommend appropriate
action to overcome any impediment to achieving the objectives of the
EEO/ADR/AE programs and accomplishing the EEO objectives under the
Performance, Accountability, Communications System (PACS) or other
Departmental performance appraisal system;
(m) Provide applicant data to ODEEO for analysis; and
(n) Provide recognition to employees, supervisors, managers and
units demonstrating superior accomplishments in EEO.
Sec. 7.15 Responsibilities of managers and supervisors.
All managers and supervisors of the Department are responsible for:
(a) Removing barriers to EEO and ensuring that affirmative
employment objectives are accomplished in their areas of responsibility;
(b) Evaluating and documenting subordinate managers and supervisors
on their performance of EEO/ADR/AE responsibilities;
(c) Encouraging and taking positive steps to ensure respect for and
acceptance of minorities, women and persons with disabilities, veterans
and others of diverse characteristics in the workforce;
(d) Ensuring the non-discriminatory treatment of all employees and
for providing full and fair opportunity for all employees in obtaining
employment and career advancement, including support for ADR, the Upward
Mobility Program, the Mentoring Program and the implementation of
Individual Development Plans;
(e) Encouraging and authorizing staff participation in the various
Diversity Program observances and training opportunities;
(f) Being proactive in addressing EEO/ADR/AE issues, and maintaining
work environments that encourage and support complaint avoidance through
sound management and personnel practices;
(g) Resolving complaints of discrimination early in the EEO process
either independently, or through the use of ADR techniques;
(h) Making reasonable accommodations to the known physical and
mental limitations of applicants and employees with disabilities when
those accommodations can be made without undue hardship on the business
of the Department;
(i) Attending mandatory annual supervisory and management training;
and
(j) Adhering to and implementing the Department's policy on
religious accommodations.
Sec. 7.16 Responsibilities of employees.
All employees of the Department are responsible for:
(a) Being informed as to the Department's EEO/ADR/AE programs;
(b) Adopting an attitude of full acceptance and respect for
minorities, females, persons with disabilities, veterans and others of
diverse characteristics in the workforce, and support for and
participation in ADR;
(c) Providing equality of treatment and service to all persons with
whom they come in contact in carrying out their job responsibilities;
(d) Providing assistance to supervisors and managers in carrying out
their responsibilities in the EEO/ADR/AE programs; and
(e) Cooperating during EEO investigations and throughout the entire
EEO ADR process.
[[Page 120]]
Pre-Complaint Processing
Sec. 7.25 Pre-complaint processing.
(a) An ``aggrieved person'' must request counseling in accordance
with 29 CFR 1614.105(a). The aggrieved person must initiate contact with
an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of
the effective date of the action. EEOC's regulation at 29 CFR 1614.105
shall govern the Department's pre-complaint processing.
(b) The Department or the EEOC shall extend the 45-day time limit in
paragraph (a) of this section when the individual shows that the
individual was not notified of the time limits and was not otherwise
aware of them, that the individual did not know and reasonably should
not have known that the discriminatory matter or personnel action
occurred, that despite due diligence the individual was prevented by
circumstances beyond the individual's control from contacting the EEO
Counselor within the time limits, or for other reasons considered
sufficient by the ODEEO or the EEOC.
(c) At the initial counseling session, EEO Counselors must advise
individuals, in writing, of their rights and responsibilities,
including:
(1) The right to request a hearing and decision from an
Administrative Judge of the EEOC or an immediate final decision from the
Department following an investigation in accordance with 29 CFR
1614.108(f);
(2) Election rights pursuant to 29 CFR 1614.301 and 29 CFR 1614.302;
(3) The right to file a notice of intent to sue pursuant to 29 CFR
1614.201(a) and a lawsuit under the ADEA instead of an administrative
complaint of age discrimination under this subpart;
(4) The duty to mitigate damages;
(5) Relevant time frames; and
(6) The requirement that only the claims raised in pre-complaint
counseling (or claims like or related to claims raised in pre-complaint
counseling) may be alleged in a subsequent complaint filed with the
Department.
Sec. 7.26 EEO Alternative Dispute Resolution Program.
(a) The aggrieved person may elect to participate in the EEO ADR
Program or the traditional EEO counseling procedures. When ADR is
chosen, the EEO Counselor shall advise the aggrieved person that if the
dispute is resolved during the ADR process, the terms of the agreement
must be in writing and signed by both the aggrieved person and the
appropriate Department representative. The Director of EEO may execute
ADR settlement agreements that are initiated in the EEO process. The EEO
Counselor shall advise the aggrieved person that if no resolution is
reached under the EEO ADR Program, or if the matter has not been
resolved 90 days from the initial contact with the EEO Office, the
aggrieved person will receive a final interview and the notice of right
to file a formal complaint shall be issued by the EEO Counselor. Nothing
said or done during attempts to resolve the complaint through ADR may be
included in any EEO complaint (should ADR be unsuccessful) nor can the
ADR proceedings be disclosed.
(b) In appropriate cases (as determined by the Director of EEO on a
case-by-case basis), ADR is available during the formal complaint
process. Participation in ADR at the formal complaint stage does not
affect the normal processing of the formal complaint, including the
investigation. Should ADR be initiated at the formal complaint stage,
the time period for processing the complaint may be extended by
agreement for not more than 90 days. If ADR does not resolve the
issue(s), the complaint must be processed within the extended time
period agreed upon by the parties, but no later than the 90th day.
Complaints
Sec. 7.30 Presentation of complaint.
At any stage in the presentation of a complaint, including the
counseling stage, the Complainant shall be free from restraint,
interference, coercion, discrimination, or reprisal and shall
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have the right to be accompanied, represented, and advised by a
representative of the Complainant's own choosing, except as limited by
29 CFR part 1614.
Sec. 7.31 Who may file a complaint, with whom filed, and time limits.
(a) Who may file a complaint. Any aggrieved person (referred to
elsewhere in this part as the Complainant in the formal complaint stage)
who has satisfied the requirements of Sec. 7.25, may file a complaint,
unless there is an executed settlement agreement or amended complaint of
like or similar issues. The complaint must be filed with the Director of
EEO within 15 days of receipt of the notice of right to file a complaint
issued by the EEO Counselor. The Department may accept a complaint only
if the Complainant has met the appropriate requirements of 29 CFR part
1614.
(b) Filing and computation of time. (1) All time periods in this
subpart stated in terms of days are calendar days unless otherwise
stated.
(2) A document shall be deemed timely if the document is received or
postmarked before the expiration of the applicable filing period, or, in
the absence of a legible postmark, if the document is received by mail
within five days of the expiration of the applicable filing period.
(3) The time limits in this part are subject to waiver, estoppel and
equitable tolling.
(4) The first day counted shall be the day after the event from
which the time period begins to run and the last day of the period shall
be included, unless the last day falls on a Saturday, Sunday or Federal
holiday, in which case the period shall be extended to include the next
business day.
Sec. 7.32 Representation and official time.
(a) At any stage in the processing of an EEO complaint, including
the counseling stage under 29 CFR 1614.105 and during participation in
the EEO ADR Program, the Complainant shall have the right to be
accompanied, represented, and advised by a representative of
Complainant's choice, except as limited by 29 CFR part 1614.
(b) If the Complainant is an employee of the Department, the
Complainant shall have a reasonable amount of official time, if
otherwise on duty, to prepare the complaint and to respond to Department
and EEOC requests for information if the Complainant is otherwise in
active duty status. If the Complainant is an employee of the Department
and the Complainant designates another employee of the Department as the
Complainant's representative, the representative shall have a reasonable
amount of official time, if otherwise on duty, to prepare the complaint
and respond to Department and EEOC requests for information.
(c) The Department is not obligated to change work schedules, incur
overtime wages, or pay travel expenses to facilitate the choice of a
specific representative or to allow the Complainant and representative
to confer. The Complainant and the Complainant's representative, if
employed by the Department and otherwise in a pay status, shall be on
official time, regardless of their tour of duty, when their presence is
authorized or required by the Department or the EEOC during the
investigation, informal adjustment, or hearing on the complaint.
(d) In cases where the representation of a Complainant or the
Department would conflict with the official or collateral duties of the
representative, the EEOC or the Department may, after giving the
representative an opportunity to respond, disqualify the representative.
(e) Unless the Complainant states otherwise in writing, after the
Department has received written notice of the name, address and
telephone number of a representative for the Complainant, all official
correspondence shall be with the representative with copies to the
Complainant. When the Complainant designates an attorney as
representative, service of all official correspondence shall be made on
the attorney and the Complainant, but time frames for receipt of
materials shall be computed from the time of receipt by the attorney.
The Complainant must serve all official correspondence on the
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designated representative of the Department and shall notify the
Department of any changes of the representative and Complainant's
address.
(f) The Complainant shall at all times be responsible for proceeding
with the complaint and cooperating in the entire EEO complaint process,
whether or not the Complainant has designated a representative.
(g) Witnesses who are Federal employees, regardless of their tour of
duty and regardless of whether they are employed by the Department or
some other Federal agency, shall be in a duty status when their presence
is authorized or required by EEOC or Department officials in connection
with an EEO complaint.
Sec. 7.33 Contents of the complaint.
(a) Information to be included in complaint. (1) The complaint filed
should include the following information:
(i) The specific claim or personnel matter which is alleged to be
discriminatory;
(ii) The date the act or matter occurred;
(iii) The protected basis or bases on which the alleged
discrimination occurred;
(iv) Facts and other pertinent information to support the claim(s)
of discrimination; and
(v) The relief desired.
(2) To expedite the processing of complaints of discrimination, the
Complainant may use the HUD EEO-1 Complaint Form to file the complaint.
(b) Amendments. (1) A Complainant may amend a complaint at any time
prior to the conclusion of the investigation to include issues or claims
like or related to those raised in the complaint. After requesting a
hearing, a Complainant may file a motion with the EEOC Administrative
Judge to amend a complaint to include issues or claims like or related
to those raised in the complaint.
(2) The Department shall acknowledge receipt of a complaint or an
amendment to a complaint in writing and inform the Complainant of the
date on which the complaint or amendment was filed. The Department shall
advise the Complainant in the acknowledgment of the EEOC office and its
address where a request for a hearing shall be sent. Such acknowledgment
shall also advise the Complainant that:
(i) The Complainant has the right to appeal the dismissal of or
final action on a complaint; and
(ii) The Department is required to conduct an impartial and
appropriate investigation of the complaint within 180 days of the filing
of the complaint unless the parties agree in writing to extend the time
period. When a complaint has been amended, the Department shall complete
its investigation within the earlier of 180 days after the last
amendment to the complaint or 360 days after the filing of the original
complaint, except that the Complainant may request a hearing from an
EEOC Administrative Judge on the consolidated complaints any time after
180 days from the date of the first filed complaint.
(c) Joint processing and consolidation. (1) Complaints of
discrimination filed by two or more Complainants consisting of
substantially similar allegations of discrimination or relating to the
same matter may be consolidated by the Department or the EEOC for joint
processing after appropriate notification to the parties.
(2) Two or more complaints of discrimination filed by the same
Complainant shall be consolidated by the Department for joint processing
after appropriate notification to the Complainant. When a complaint has
been consolidated with one or more earlier filed complaints, the
Department shall complete its investigation within the earlier of 180
days after the filing of the last complaint or 360 days after the filing
of the original complaint, except that the Complainant may request a
hearing from an EEOC Administrative Judge on the consolidated complaints
any time after 180 days from the date of the first filed complaint.
(3) EEOC Administrative Judges or the EEOC may, in their discretion,
consolidate two or more complaints of discrimination filed by the same
Complainant.
(d) Class complaints. (1) Definitions. (i) A class is a group of
employees, former employees or applicants for employment who, it is
alleged, have been or
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are being adversely affected by the Department's personnel management
policy or practice that discriminates against the group on the basis of
their common race, color, religion, sex, national origin, age,
disability, or in reprisal for participating in protected EEO activity
or for opposing a practice made illegal under the EEO statutes.
(ii) A class complaint is a written complaint of discrimination
filed on behalf of a class by the agent of the class that satisfies the
requirements of 29 CFR 1614.204.
(2) Pre-complaint processing. A current or former employee or
applicant who wishes to file a class complaint must be counseled in
accordance with 29 CFR 1614.105. A Complainant may move for class
certification at any reasonable point in the process when it becomes
apparent that there are class implications to the claim raised in an
individual complaint. If a Complainant moves for class certification
after completing the counseling process in 29 CFR 1614.105, no
additional counseling is required. Class certification shall be denied
by the EEOC Administrative Judge, when the Complainant has unduly
delayed in moving for certification.
(3) Certification. Class complaints are certified by an EEOC
Administrative Judge in accordance with the provisions of 29 CFR
1614.204.
(e) Mixed case complaints. (1) Definitions. A mixed case complaint
is a complaint of employment discrimination filed with a Federal agency
based on race, color, religion, sex, national origin, age, disability,
or in reprisal for participating in protected EEO activity or for
opposing a policy or practice made illegal by the EEO statutes, related
to or stemming from an action that can be appealed to the Merit Systems
Protection Board (MSPB). The complaint may contain only a claim of
employment discrimination or the complaint may contain additional claims
that the MSPB has jurisdiction to address.
(2) Election. An aggrieved person may initially file a mixed case
complaint with the Department pursuant to this section or an appeal on
the same matter with the MSPB pursuant to 5 CFR 1201.151, but not both.
The Department shall inform every employee who is the subject of an
action that is appealable to the MSPB and who has either orally or in
writing raised the issue of discrimination during the processing of the
action of the right to file either a mixed case complaint with the
Department or to file a mixed case appeal with the MSPB. If a person
files a mixed case appeal with the MSPB instead of a mixed case
complaint and the MSPB dismisses the appeal for jurisdictional reasons,
the Department shall promptly notify the individual in writing of the
right to contact an EEO counselor within 45 days of receipt of this
notice and to file an EEO complaint, subject to 29 CFR 1614.107.
(3) Procedures for agency processing of mixed case complaints. When
a complainant elects to proceed initially under 29 CFR part 1614,
subpart C, rather than with the MSPB, the procedures in 29 CFR part
1614, subpart A, shall govern the processing of the mixed case complaint
with the following exceptions:
(i) At the time the Department advises a Complainant of the
acceptance of a mixed case complaint, the Department shall also advise
the Complainant that:
(A) If a final decision is not issued within 120 days of the date of
filing of the mixed case complaint, the Complainant may appeal the
matter to the MSPB at any time thereafter as specified at 5 CFR
1201.154(b)(2) or may file a civil action as specified at 29 CFR
1614.310(g), but not both; and
(B) If the Complainant is dissatisfied with the Department's final
decision on the mixed case complaint, the Complainant may appeal the
matter to MSPB (not EEOC) within 30 days of receipt of the Department's
final decision;
(ii) Upon completion of the investigation, the notice provided the
Complainant in accordance with 29 CFR 1614.108(f) will advise the
Complainant that a final decision will be issued within 45 days without
a hearing; and
(iii) At the time that the Department issues its final decision on a
mixed case complaint, the Department shall advise the Complainant of the
right to appeal the matter to the MSPB (not EEOC) within 30 days of
receipt and of the
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right to file a civil action as provided at 29 CFR 1614.310(a).
(4) Dismissal. The Department may dismiss a mixed case complaint for
the reasons provided in, and under the conditions prescribed in 29 CFR
1614.107. If MSPB's Administrative Judge finds that MSPB does not have
jurisdiction over the matter, the Department shall resume processing of
the complaint as a non-mixed case EEO complaint.
Sec. 7.34 Acceptability.
(a) The Director of EEO shall determine whether a complaint comes
within the purview of 29 CFR part 1614 and shall advise the Complainant
and Complainant's representative, if applicable, in writing of the
acceptance or dismissal of the claims(s) of the complaint. The Notice of
Receipt is provided to the Complainant, Complainant's representative, if
applicable, and to the organizational unit through the appropriate EEO
Officer and DCM.
(b) Dismissals of complaints are governed by the notice requirements
and procedures in 29 CFR 1614.106(e)(1) and 29 CFR 1614.107.
(c) Prior to a request for a hearing in a case, the Department shall
dismiss an entire complaint for any of the reasons provided in 29 CFR
1614.107(a)(1) through (9), including a complaint that alleges
dissatisfaction with the processing of a previously filed complaint; or
where the Department, strictly applying the criteria in EEOC decisions,
finds that the complaint is part of a clear pattern of misuse of the EEO
process for a purpose other than the prevention and elimination of
employment discrimination. A clear pattern of misuse of the EEO process
requires:
(1) Evidence of multiple complaint filings; and
(2) Claims that are similar or identical, lack specificity or
involve matters previously resolved; or
(3) Evidence of circumventing other administrative processes,
retaliating against the Department's in-house administrative processes
or overburdening the EEO complaint system.
(d) Where the Director of EEO believes that some, but not all, of
the claims in a complaint should be dismissed for the reasons provided
in this section and 29 CFR 1614.107(a)(1) through (9), the Department
shall notify the Complainant in writing of its determination, the
rationale for that determination and that those claims will not be
investigated, and shall place a copy of the notice in the investigative
file. A determination under 29 CFR 1614.107(b)(1) that some claims
should be dismissed is reviewable by an EEOC Administrative Judge if a
hearing is requested on the remainder of the complaint, but is not
appealable until final action is taken on the remainder of the
complaint.
Sec. 7.35 Processing.
(a) The Director of EEO will process complaints filed under 29 CFR
part 1614 for the Department with the assistance of the EEO Officer,
DCM, the EEO Counselor and the full cooperation of all other Department
managers, supervisors and other employees.
(b) The Director of EEO shall, in accordance with 29 CFR part 1614,
provide for the development of an impartial and appropriate factual
record upon which to make findings on the claims raised by the written
complaint. An appropriate factual record is one that allows a reasonable
fact finder to draw conclusions as to whether discrimination occurred.
The person assigned to develop the factual record may use an exchange of
letters or memoranda, interrogatories, investigations, fact-finding
conferences or any other fact-finding methods that efficiently and
thoroughly address the matters at issue and is encouraged, in accordance
with 29 CFR 1614.108(b), to incorporate ADR techniques into the
investigative efforts in order to promote early resolution of
complaints.
(c) The Director of EEO will provide the Complainant and
Complainant's representative, if applicable, and the EEO Officer a copy
of the record developed. Within 180 days from the filing of the
complaint, or where a complaint was amended, within the earlier of 180
days after the last amendment to the complaint or 360 days after the
filing of the original complaint, within the time period contained in an
order from the Office of Federal Operations on an appeal from a
dismissal, or within any period of extension provided for in 29 CFR
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1614.108(f), the Department shall provide the Complainant with a copy of
the investigative file, and shall notify the Complainant that, within 30
days of receipt of the investigative file, the Complainant has the right
to request a hearing and decision from an EEOC Administrative Judge or
may request an immediate final decision pursuant to 29 CFR 1614.110 from
the Department.
Sec. 7.36 Hearing.
(a) Notification of right to request a hearing. The Director of EEO
will notify the Complainant, the General Counsel, EEO Officer, DCM and
Complainant's representative, where applicable, of the Complainant's
right to request an administrative hearing and decision before the EEOC
or the Department's final decision and the time frames for executing the
right to request an administrative hearing. Note: Where a mixed case
complaint is filed, the Complainant has no right to a hearing before an
EEOC Administrative Judge unless the MSPB has dismissed the mixed case
complaint or appeal for jurisdictional reasons. (See 29 CFR
1614.302(2)(b).)
(b) Requesting a hearing. Where the Complainant has received the
notice required in Sec. 7.35(c) and 29 CFR 1614.108(f) or at any time
after 180 days have elapsed from the filing of the complaint, the
Complainant may request a hearing by submitting a written request for a
hearing directly to the EEOC office indicated in the Department's
acknowledgment letter. The Complainant shall send a copy of the request
for a hearing to the Department's EEO office. Within 15 days of receipt
of a copy of complainant's request for a hearing, or the docketing
notice from the EEOC, whichever is earlier, the Director of EEO shall
provide a copy of the complaint file to EEOC and, if not previously
provided, to the Complainant, Complainant's representative, if
applicable, and the appropriate Office of General Counsel.
(c) EEOC appointment of EEOC Administrative Judge. When a
Complainant requests a hearing, the EEOC shall appoint an EEOC
Administrative Judge to conduct a hearing in accordance with this
section. Upon appointment, the EEOC Administrative Judge shall assume
full responsibility for the adjudication of the complaint, including
overseeing the development of the record. Any hearing will be conducted
by an EEOC Administrative Judge or hearing examiner with appropriate
security clearances.
(d) Dismissals. EEOC Administrative Judges may dismiss complaints
pursuant to 29 CFR 1614.107, on their own initiative, after notice to
the parties, or upon the Department's motion to dismiss a complaint.
(e) Offer of resolution. Any time after the filing of the written
complaint but not later than the date an EEOC Administrative Judge is
appointed to conduct a hearing, the Department may make an offer of
resolution to a Complainant who is represented by an attorney.
(1) Any time after the parties have received notice that an EEOC
Administrative Judge has been appointed to conduct a hearing, but not
later than 30 days prior to the hearing, the Department may make an
offer of resolution to the Complainant, whether represented by an
attorney or not.
(2) The offer of resolution shall be in writing and shall include a
notice explaining the possible consequences of failing to accept the
offer. The Department's offer, to be effective, must include attorney's
fees and costs and must specify any non-monetary relief.
(3) With regard to monetary relief, the Department may make a lump
sum offer covering all forms of monetary liability, or the Department
may itemize the amounts and types of monetary relief being offered.
(4) The Complainant shall have 30 days from receipt of the offer of
resolution to accept the offer of resolution. If the Complainant fails
to accept an offer of resolution and the relief awarded in the EEOC
Administrative Judge's decision, the Department's final decision, or the
EEOC decision on appeal is not more favorable than the offer, then,
except where the interest of justice would not be served, the
Complainant shall not receive payment from the Department of attorney's
fees or costs incurred after the expiration of the 30-day acceptance
period.
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(5) An acceptance of an offer must be in writing and will be timely
if postmarked or received within the 30-day period. Where a Complainant
fails to accept an offer of resolution, the Department may make other
offers of resolution and either party may seek to negotiate a settlement
of the complaint at any time.
(f) Orders to produce evidence and failure to comply. (1) The
Complainant, the Department, and any employee of the Department shall
produce such documentary and testimonial evidence as the EEOC
Administrative Judge deems necessary. The EEOC Administrative Judge
shall serve all orders to produce evidence on both parties.
(2) When the Complainant, or the agency against which a complaint is
filed, or its employees fail without good cause shown to respond fully
and in timely fashion to an order of an EEOC Administrative Judge, or
requests for the investigative file, for documents, records, comparative
data, statistics, affidavits, or the attendance of witness(es), the EEOC
Administrative Judge shall, in appropriate circumstances:
(i) Draw an adverse inference that the requested information, or the
testimony of the requested witness, would have reflected unfavorably on
the party refusing to provide the requested information;
(ii) Consider the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
(iii) Exclude other evidence offered by the party failing to produce
the requested information or witness;
(iv) Issue a decision fully or partially in favor of the opposing
party; or
(v) Take such other actions as appropriate.
(g) Discovery, conduct and record of hearing. (1) Discovery. The
EEOC Administrative Judge shall notify the parties of the right to seek
discovery prior to the hearing and may issue such discovery orders as
are appropriate. Unless the parties agree in writing concerning the
methods and scope of discovery, the party seeking discovery shall
request authorization from the EEOC Administrative Judge prior to
commencing discovery. Both parties are entitled to reasonable
development of evidence on matters relevant to the issues raised in the
complaint, but the EEOC Administrative Judge may limit the quantity and
timing of discovery. Evidence may be developed through interrogatories,
depositions, and requests for admissions, stipulations or production of
documents. Grounds for objection to producing evidence shall be that the
information sought by either party is irrelevant, overburdensome,
repetitious, or privileged.
(2) Conduct of hearing. The Department shall provide for the
attendance at a hearing of all employees approved as witnesses by an
EEOC Administrative Judge. Attendance at hearings will be limited to
persons determined by the EEOC Administrative Judge to have direct
knowledge relating to the complaint. Hearings are part of the
investigative process and are thus closed to the public. The EEOC
Administrative Judge shall have the power to regulate the conduct of a
hearing, limit the number of witnesses where testimony would be
repetitious, and exclude any person from the hearing for contumacious
conduct or misbehavior that obstructs the hearing. The EEOC
Administrative Judge shall receive into evidence information or
documents relevant to the complaint. Rules of evidence shall not be
applied strictly, but the EEOC Administrative Judge shall exclude
irrelevant or repetitious evidence. The EEOC Administrative Judge or the
Commission may refer to the Disciplinary Committee of the appropriate
Bar Association any attorney or, upon reasonable notice and an
opportunity to be heard, suspend or disqualify from representing
Complainants or agencies in EEOC hearings any representative who refuses
to follow the orders of an EEOC Administrative Judge, or who otherwise
engages in improper conduct.
(3) Record of hearing. The hearing shall be recorded and the
Department shall arrange and pay for verbatim transcripts. All documents
submitted to, and accepted by, the EEOC Administrative Judge at the
hearing shall be made part of the record of the hearing. If the
Department submits a document that is accepted, the Department shall
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furnish a copy of the document to the Complainant. If the Complainant
submits a document that is accepted, the EEOC Administrative Judge shall
make the document available to the Department representative for
reproduction.
Sec. 7.37 Final action.
(a) Department final decision without a hearing. The Director of EEO
shall make the final decision for the Department based on the record
developed through the processing of the complaint. The Director of EEO
may consult with the General Counsel, the Assistant Secretary of
Administration, the Office of Human Resources, the EEO Officer, the DCM,
the EEO Counselor, other managers and supervisors, all designees and
comparables, and all other persons the Director of EEO deems necessary.
The decision, where appropriate, shall include the remedial and
corrective action necessary to ensure that the Department is in
compliance with the EEO statutes and to promote the Department's policy
of equal employment opportunity. When the Department dismisses an entire
complaint under 29 CFR 1614.107, receives a request for an immediate
final decision or does not receive a reply to the notice issued under 29
CFR 1614.108(f), the Department shall take final action by issuing a
final decision. The final decision shall consist of findings by the
Department on the merits of each issue in the complaint, or, as
appropriate, the rationale for dismissing any claims in the complaint
and, when discrimination is found, appropriate remedies and relief in
accordance with 29 CFR part 1614, subpart E. The Department shall issue
the final decision within 60 days of receiving notification that a
Complainant has requested an immediate decision from the Department, or
within 60 days of the end of the 30-day period for the Complainant to
request a hearing or an immediate final decision where the Complainant
has not requested either a hearing or a decision. The final action shall
contain notice of the right to appeal the final action to the EEOC, the
right to file a civil action in federal district court, the name of the
proper defendant in any such lawsuit and the applicable time limits for
appeals and lawsuits. A copy of the Notice of Appeal Petition (EEOC Form
573) shall be attached to the final action.
(b) Department final order after decision by EEOC Administrative
Judge. When an EEOC Administrative Judge has issued a decision under 29
CFR 1614.109 (b), (g) or (i), the Department shall take final action on
the complaint by issuing a final order within 40 days of receipt of the
hearing file and the EEOC Administrative Judge's decision. The final
order shall notify the Complainant whether or not the Department will
fully implement the decision of the EEOC Administrative Judge and shall
contain notice of the Complainant's right to appeal to the EEOC, the
right to file a civil action in federal district court, the name of the
proper defendant in any such lawsuit and the applicable time limits for
appeals and lawsuits. If the final order does not fully implement the
decision of the EEOC Administrative Judge, then the Department shall
simultaneously file an appeal in accordance with 29 CFR 1614.403 and
append a copy of the appeal to the final order. A copy of EEOC Form 573
shall be attached to the final order.
(c) Decision and final order by EEOC Administrative Judge after
hearing. Unless the EEOC Administrative Judge makes a written
determination that good cause exists for extending the time for issuing
a decision, an EEOC Administrative Judge shall issue a decision on the
complaint, and shall order appropriate remedies and relief where
discrimination is found, within 180 days of receipt by the EEOC
Administrative Judge of the complaint file from the Department. The EEOC
Administrative Judge shall send copies of the hearing record, including
the transcript, and the decision to the parties. If the Department does
not issue a final order within 40 days of receipt of the EEOC
Administrative Judge's decision in accordance with 29 CFR 1614.110, then
the decision of the EEOC Administrative Judge shall become the final
action of the Department.
(d) Decision and final order by EEOC Administrative Judge without
hearing. (1) If a party believes that some or all material facts are not
in genuine dispute
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and there is no genuine issue as to credibility, the party may, at least
15 days prior to the date of the hearing or at such earlier time as
required by the EEOC Administrative Judge, file a statement with the
EEOC Administrative Judge prior to the hearing setting forth the fact or
facts and referring to the parts of the record relied on to support the
statement. The statement must demonstrate that there is no genuine issue
as to any such material fact. The party shall serve the statement on the
opposing party.
(2) The opposing party may file an opposition within 15 days of
receipt of the statement in 29 CFR 1614.109(g)(1). The opposition may
refer to the record in the case to rebut the statement that a fact is
not in dispute or may file an affidavit stating that the party cannot,
for reasons stated, present facts to oppose the request. After
considering the submissions, the EEOC Administrative Judge may order
that discovery be permitted on the fact or facts involved, limit the
hearing to the issues remaining in dispute, issue a decision without a
hearing or make such other ruling as is appropriate.
(3) If the EEOC Administrative Judge determines that some or all
facts are not in genuine dispute, the EEOC Administrative Judge may,
after giving notice to the parties and providing them an opportunity to
respond in writing within 15 days, issue an order limiting the scope of
the hearing or issue a decision without holding a hearing.
Sec. 7.38 Appeals.
(a) Appeals to the EEOC. (1) A Complainant may appeal the
Department's final action or dismissal of a complaint. The regulations
at 29 CFR part 1614, subpart D, govern a Complainant's right of appeal.
(2) The Department may appeal as provided in 29 CFR 1614.110(a).
(3) A class agent or the Department may appeal an EEOC
Administrative Judge's decision accepting or dismissing all or part of a
class complaint; a class agent may appeal a final decision on a class
complaint; a class member may appeal a final decision on a claim for
individual relief under a class complaint; and a class member, a class
agent or the Department may appeal a final decision on a petition
pursuant to 29 CFR 1614.204(g)(4).
(b) Time limits for appeals to the EEOC. Appeals described in 29 CFR
1614.401 (a) and (c) must be filed within 30 days of Complainant's
receipt of the dismissal, final action or decision, or within 30 days of
receipt by the attorney of record, if represented. Appeals described in
29 CFR 1614.401(b) must be filed within 40 days of receipt of the
hearing file and decision. Where a Complainant has notified the Director
of EEO of alleged noncompliance with a settlement agreement in
accordance with 29 CFR 1614.504, the Complainant may file an appeal 35
days after service of the allegations of noncompliance, but no later
than 30 days after receipt of the Department's determination.
(c) How to appeal. (1) The Complainant, the Department, a class
agent, grievant or individual class claimant (referred to elsewhere in
this part as the appellant) must file an appeal with the Director,
Office of Federal Operations, Equal Employment Opportunity Commission,
at P.O. Box 19848, Washington, DC 20036, or by personal delivery or
facsimile. The appellant should use EEOC Form 573, Notice of Appeal/
Petition, and should indicate what is being appealed.
(2) The appellant shall furnish a copy of the appeal to the opposing
party at the same time the appeal is filed with the EEOC. In or attached
to the appeal to the EEOC, the appellant must certify the date and
method by which service was made on the opposing party.
(3) If an appellant does not file an appeal within the time limits
of this section, the appeal shall be dismissed by the EEOC as untimely.
(4) Any statement or brief on behalf of a Complainant in support of
the appeal must be submitted to the Office of Federal Operations within
30 days of filing the notice of appeal. Any statement or brief on behalf
of the Department in support of its appeal must be submitted to the
Office of Federal Operations within 20 days of filing the notice of
appeal. The Office of Federal Operations will accept statements or
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briefs in support of an appeal by facsimile transmittal, provided they
are no more than 10 pages long.
(5) The Department must submit the complaint file to the Office of
Federal Operations within 30 days of initial notification that the
Complainant has filed an appeal or within 30 days of submission of an
appeal by the Department.
(6) The Department may be represented by the Office of General
Counsel in appeals before the Office of Federal Operations.
(7) Any statement or brief in opposition to an appeal must be
submitted to the EEOC and served on the opposing party within 30 days of
receipt of the statement or brief supporting the appeal, or, if no
statement or brief supporting the appeal is filed, within 60 days of
receipt of the appeal. The Office of Federal Operations will accept
statements or briefs in opposition to an appeal by facsimile provided
they are no more than 10 pages long.
(d) Request for reconsideration. A decision issued under paragraph
(a) of Sec. 1614.405 is final within the meaning of 29 CFR 1614.407
unless the EEOC reconsiders the case. A party may request
reconsideration within 30 days of receipt of a decision of the EEOC,
which the EEOC in its discretion may grant, if the party demonstrates
that:
(1) The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
(2) The decision will have a substantial impact on the policies,
practices or operations of the Department.
Other Complaint and Appeal Procedures
Sec. 7.39 Negotiated grievance, MSPB appeal and administrative grievance procedures.
(a) Negotiated grievance procedure. An aggrieved person covered by a
collective bargaining agreement that permits allegations of
discrimination to be raised in a negotiated grievance procedure can file
a complaint under these procedures or a negotiated grievance, but not
both. An election to proceed under this section is indicated only by the
filing of a written complaint. An election to proceed under a negotiated
grievance procedure is indicated by the filing of a timely grievance.
(See 29 CFR 1614.301.)
(b) MSPB appeal procedure. (1) Who can file appeal and when. An
aggrieved person alleging discrimination on basis of race, color,
religion, sex, national origin, age or reprisal because of participation
in related to or stemming from an action that can be appealed to the
MSPB can file a complaint under these procedures, or an appeal with the
MSPB, but not both. Whichever is filed first, the complaint or the
appeal, is considered an election to proceed in that forum. (See 29 CFR
1614.302 through 29 CFR 1614.309.)
(2) Right to file civil action about MSPB appeal or decision. The
procedures of this section are governed by 29 CFR Sec. 1614.310.
(3) MSPB appeal rights. The provisions of 29 CFR part 1614, subpart
C, shall govern MSPB appeal rights.
(c) Administrative grievance procedure. (1) Grievance. A request by
an employee, or by a group of employees acting as individuals, for
personal relief in a matter of concern or dissatisfaction related to
employment with the Department and over which the Department has
control, including an allegation of coercion, reprisal or retaliation.
The range of matters is limited to those for which no other means of
administrative review is provided.
(2) Covered employee. Any non-bargaining unit employee, including a
former employee or applicant for whom a remedy can be provided.
(3) Responsibilities of participants in the grievance procedure.
Each employee has the responsibility for making a maximum effort to
achieve informal settlement of a personal grievance.
(4) Grievance requirements. The procedures, responsibilities and
processes to be followed by an employee wishing to file an
administrative grievance are found in HUD Handbook 771.2 REV-2,
Administrative Grievances.
Remedies, Enforcement and Compliance
Sec. 7.40 Remedies and enforcement.
(a) Remedies and relief. When the Department, or the EEOC, in an
individual case of discrimination, finds that a current or former
employee or
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applicant has been discriminated against, the Department shall provide
full relief in accordance with 29 CFR 1614.501.
(b) Attorney's fees and costs. In a decision or final action, the
Department, EEOC Administrative Judge or the EEOC may award the
applicant or current or former employee reasonable attorney's fees
(including expert witness fees) and other costs incurred in the
processing of the complaint.
(1) Full relief in Title VII and Rehabilitation Act cases may
include compensatory damages, an award of attorney's fees (including
expert witness fees) and costs when requested and verified, in
accordance with the requirements of 29 CFR 1614.501(e).
(2) Time period and persons covered. Attorney's fees shall be paid
for services performed by an attorney after the filing of a written
complaint, provided that the attorney provides reasonable notice of
representation to the Department, EEOC Administrative Judge or EEOC,
except that fees are allowable for a reasonable period of time prior to
the notification of representation for any services performed in
reaching a determination to represent the Complainant. The Department is
not required to pay attorney's fees for services performed during the
pre-complaint process, except that fees are allowable when the EEOC
affirms on appeal an EEOC Administrative Judge's decision finding
discrimination after the Department takes final action by not
implementing an EEOC Administrative Judge's decision or when the parties
agree the Department will pay for attorney's fees for pre-complaint
representation.
(c) Notice of representation. Written submissions to the Department
that are signed by the representative shall be deemed to constitute
notice of representation.
(d) Nonattorney fees and costs. Reporter, witness, printing and
other related fees and costs may be awarded, in accordance with 29 CFR
1614.501(e)(1)(iii) and 1614.501(e)(2)(ii)(C).
Sec. 7.41 Compliance with EEOC final decisions.
(a) Relief ordered in a final EEOC decision is mandatory and binding
on the Department except as provided in this section. The Department's
failure to implement ordered relief shall be subject to judicial
enforcement, as specified in 29 CFR 1614.503(g).
(b) Notwithstanding paragraph (a) of this section, when the
Department requests reconsideration and the case involves removal,
separation, or suspension continuing beyond the date of the request for
reconsideration, and when the decision orders retroactive restoration,
the Department shall comply with the decision to the extent of the
temporary or conditional restoration of the employee to duty status in
the position specified by the EEOC, pending the outcome of the
Department's request for reconsideration.
(1) Service under the temporary or conditional restoration
provisions of paragraph (b) of this section shall be credited toward the
completion of a probationary or trial period, eligibility for a within-
grade increase, or the completion of the service requirement for career
tenure, if the EEOC upholds its decision after reconsideration.
(2) When the Department requests reconsideration, the Department may
delay the payment of any amounts ordered to be paid to the Complainant
until after the request for reconsideration is resolved. If the
Department delays payment of any amount pending the outcome of the
request to reconsider and the resolution of the request requires the
Department to make the payment, then the Department shall pay interest
from the date of the original appellate decision until payment is made.
(3) The Department shall notify the EEOC and the employee in writing
at the same time the Department requests reconsideration that the relief
the Department provides is temporary or conditional and, if applicable,
that the Department will delay the payment of any amounts owed but will
pay interest as specified in paragraph (b)(2) of this section. Failure
of the Department to provide notification will result in the dismissal
of the Department's request.
(4) When no request for reconsideration is filed or when a request
for reconsideration is denied, the Department shall provide the relief
ordered
[[Page 131]]
and there is no further right to delay implementation of the ordered
relief. The relief shall be provided in full not later than 60 days
after receipt of the final decision, unless otherwise ordered in the
decision.
Sec. 7.42 Enforcement of EEOC final decisions.
(a) Petition for enforcement. A Complainant may petition the EEOC
for enforcement of a decision issued under the EEOC's appellate
jurisdiction. The petition shall be submitted to the Office of Federal
Operations. The petition shall specifically provide the reasons that led
the Complainant to believe that the Department is not complying with the
decision.
(b) Referral to the EEOC. Where the Director, Office of Federal
Operations, is unable to obtain satisfactory compliance with the final
decision, the Director shall submit appropriate findings and
recommendations for enforcement to the EEOC, or, as directed by the
EEOC, refer the matter to another appropriate Department.
(c) EEOC notice to show cause. The EEOC may issue a notice to the
Secretary that the Department has failed to comply with a decision and
to show cause why there is noncompliance. Such notice may request the
head of the Department or a representative to appear before the EEOC or
to respond to the notice in writing with adequate evidence of compliance
or with compelling reasons for non-compliance.
(d) Notification to complainant of completion of administrative
efforts. Where the EEOC has determined that the Department is not
complying with a prior decision, or where the Department has failed or
refused to submit any required report of compliance, the EEOC shall
notify the Complainant of the right to file a civil action for
enforcement of the decision pursuant to title VII, the ADEA, the Equal
Pay Act or the Rehabilitation Act and to seek judicial review of the
Department's refusal to implement the ordered relief in accordance with
the Administrative Procedure Act (5 U.S.C. 701 et seq.), and the
mandamus statute (28 U.S.C. 1361), or to commence new proceedings in
accordance with the appropriate statutes.
Sec. 7.43 Settlement agreements.
(a) The Department shall make reasonable efforts to voluntarily
settle complaints of discrimination as early as possible in, and
throughout, the administrative processing of complaints, including the
pre-complaint counseling stage. These efforts shall include ADR. Any
settlement reached shall:
(1) Be in writing;
(2) Identify the claims resolved;
(3) Be signed by both parties and/or their designees; and
(4) Otherwise comply with 29 CFR part 1614.
(b) Any settlement agreement knowingly and voluntarily agreed to by
the parties, reached at any stage of the complaint process, shall be
binding on both parties. Final action that has not been the subject of
an appeal or civil action shall be binding on the Department. If the
Complainant believes that the Department has failed to comply with the
terms of a settlement agreement or decision, the Complainant shall
notify the Director of EEO, in writing, of the alleged noncompliance
within 30 days of when the Complainant knew or should have known of the
alleged noncompliance. The Complainant may request that the terms of the
settlement agreement be specifically implemented or, alternatively, that
the complaint be reinstated for further processing from the point
processing ceased.
(c) The Department shall resolve the matter and respond to the
Complainant, in writing. If the Department has not responded to the
Complainant, in writing, or if the Complainant is not satisfied with the
Department's attempt to resolve the matter, the Complainant may appeal
to the EEOC for a determination as to whether the Department has
complied with the terms of the settlement agreement or final decision.
The Complainant may file such an appeal 35 days after the Complainant
has served the Department with the allegations of noncompliance, but
must file an appeal within 30 days of the Complainant's receipt of the
Department's determination. The Complainant must serve a copy of the
appeal on the Department and the Department may submit a response to the
[[Page 132]]
EEOC within 30 days of receiving notice of the appeal.
Sec. 7.44 Interim relief.
(a) When the Department appeals and the case involves removal,
separation, or suspension continuing beyond the date of the appeal, and
when the EEOC Administrative Judge's decision orders retroactive
restoration, the Department shall comply with the decision to the extent
of the temporary or conditional restoration of the employee to duty
status in the position specified in the decision, pending the outcome of
the Department appeal. The employee may decline the offer of interim
relief.
(b) Service under the temporary or conditional restoration
provisions of paragraph (a) of this section shall be credited toward the
completion of a probationary or trial period, eligibility for a within-
grade increase, or the completion of the service requirement for career
tenure, if the EEOC upholds the decision on appeal. Such service shall
not be credited toward the completion of any applicable probationary or
trial period or the completion of the service requirement for career
tenure, if the EEOC reverses the decision on appeal.
(c) When the Department appeals, the Department may delay the
payment of any amount, other than prospective pay and benefits, ordered
to be paid to the Complainant until after the appeal is resolved. If the
Department delays payment of any amount pending the outcome of the
appeal and the resolution of the appeal requires the Department to make
the payment, then the Department shall pay interest from the date of the
original decision until payment is made.
(d) The Department shall notify the EEOC and the employee in writing
at the same time the Department appeals that the relief the Department
provides is temporary or conditional and, if applicable, that the
Department will delay the payment of any amounts owed but will pay
interest as specified in paragraph (c) of this section. Failure of the
Department to provide notification will result in the dismissal of the
Department's appeal.
(e) The Department may, by notice to the Complainant, decline to
return the Complainant to the Complainant's place of employment if the
Department determines that the return or presence of the Complainant
will be unduly disruptive to the work environment. However, prospective
pay and benefits must be provided. The determination not to return the
Complainant to the Complainant's place of employment is not reviewable.
A grant of interim relief does not insulate a Complainant from
subsequent disciplinary or adverse action.
(f) If the Department files an appeal and has not provided required
interim relief, the Complainant may request dismissal of the
Department's appeal. Any such request must be filed with the Office of
Federal Operations within 25 days of the date of service of the
Department's appeal. A copy of the request must be served on the
Department at the same time the request is filed with EEOC. The
Department may respond with evidence and argument to the Complainant's
request to dismiss within 15 days of the date of service of the request.
Statistics and Reporting Requirements
Sec. 7.45 EEO group statistics and reports.
(a) The Department shall establish a system to collect and maintain
accurate employment information on the race, national origin, sex and
disability of its employees and applicant flow in accordance with 29 CFR
1614.601 through 29 CFR 1614.602 and the Department shall report to the
EEOC on employment by race, national origin, sex and disability, in the
form and at such times as the EEOC may require.
(b) The Department shall report to the EEOC information concerning
pre-complaint counseling and the status, processing and disposition of
complaints under this part, at such times and in such manner as the EEOC
prescribes.
(c) The Department shall advise the EEOC whenever the Department is
served with a Federal court complaint based upon a complaint that is
pending on appeal at the EEOC.
(d) The Department shall submit annual written national equal
employment opportunity plans of action for
[[Page 133]]
the review and approval of the EEOC. Plans shall be submitted in a
format prescribed by the EEOC and in accordance with 29 CFR 1614.602.
Subpart B [Reserved]
PART 8--NONDISCRIMINATION BASED ON HANDICAP IN FEDERALLY ASSISTED PROGRAMS AND ACTIVITIES OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT--Table of Contents
Subpart A--General Provisions
Sec.
8.1 Purpose.
8.2 Applicability.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 [Reserved]
8.6 Communications.
Subpart B--Employment
8.10 General prohibitions against employment discrimination.
8.11 Reasonable accommodation.
8.12 Employment criteria.
8.13 Preemployment inquiries.
Subpart C--Program Accessibility
8.20 General requirement concerning program accessibility.
8.21 Non-housing facilities.
8.22 New construction--housing facilities.
8.23 Alterations of existing housing facilities.
8.24 Existing housing programs.
8.25 Public housing and multi-family Indian housing.
8.26 Distribution of accessible dwelling units.
8.27 Occupancy of accessible dwelling units.
8.28 Housing certificate and housing voucher programs.
8.29 Homeownership programs (sections 235(i) and 235(j), Turnkey III and
Indian housing mutual self-help programs).
8.30 Rental rehabilitation program.
8.31 Historic properties.
8.32 Accessibility standards.
8.33 Housing adjustments.
Subpart D--Enforcement
8.50 Assurances required.
8.51 Self-evaluation.
8.52 Remedial and affirmative action.
8.53 Designation of responsible employee and adoption of grievance
procedures.
8.54 Notice.
8.55 Compliance information.
8.56 Conduct of investigations.
8.57 Procedure for effecting compliance.
8.58 Hearings.
Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d) and 5309.
Source: 53 FR 20233, June 2, 1988, unless otherwise noted.
Subpart A--General Provisions
Sec. 8.1 Purpose.
(a) The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C 794), to the end that
no otherwise qualified individual with handicaps in the United States
shall, solely by reason of his or her handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance from the Department of Housing and Urban Development. This
part also implements section 109 of the Housing and Community
Development Act of 1974, as amended (42 U.S.C. 5309). This part does not
effectuate section 504 as it applies to any program or activity
conducted by the Department. Compliance with this part does not assure
compliance with requirements for accessibility by physically-handicapped
persons imposed under the Architectural Barriers Act of 1968 (42 U.S.C.
4151-4157; 24 CFR part 40).
(b) The policies and standards for compliance established by this
part are established in contemplation of, and with a view to enforcement
through, the Department's administration of programs or activities
receiving Federal financial assistance and the administrative procedures
described in subparts D and E (including, without limitation, judicial
enforcement under Sec. 8.57(a)).
Sec. 8.2 Applicability.
This part applies to all applicants for, and recipients of, HUD
assistance in the operation of programs or activities receiving such
assistance. Such assistance includes, but is not limited to, that which
is listed in appendix A of this part.
Sec. 8.3 Definitions.
As used in this part:
[[Page 134]]
Accessible, when used with respect to the design, construction, or
alteration of a facility or a portion of a facility other than an
individual dwelling unit, means that the facility or portion of the
facility when designed, constructed or altered, can be approached,
entered, and used by individuals with physical handicaps. The phrase
accessible to and usable by is synonomous with accessible.
Accessible, when used with respect to the design, construction, or
alteration of an individual dwelling unit, means that the unit is
located on an accessible route and when designed, constructed, altered
or adapted can be approached, entered, and used by individuals with
physical handicaps. A unit that is on an accessible route and is
adaptable and otherwise in compliance with the standards set forth in
Sec. 8.32 is accessible within the meaning of this paragraph. When a
unit in an existing facility which is being made accessible as a result
of alterations is intended for use by a specific qualified individual
with handicaps (e.g., a current occupant of such unit or of another unit
under the control of the same recipient, or an applicant on a waiting
list), the unit will be deemed accessible if it meets the requirements
of applicable standards that address the particular disability or
impairment of such person.
Accessible route means a continuous unobstructed path connecting
accessible elements and spaces in a building or facility that complies
with the space and reach requirements of applicable standards prescribed
by Sec. 8.32. An accessible route that serves only accessible units
occupied by persons with hearing or vision impairments need not comply
with those requirements intended to effect accessibility for persons
with mobility impairments.
Adaptability means the ability of certain elements of a dwelling
unit, such as kitchen counters, sinks, and grab bars, to be added to,
raised, lowered, or otherwise altered, to accommodate the needs of
persons with or without handicaps, or to accommodate the needs of
persons with different types or degrees of disability. For example, in a
unit adaptable for a hearing-impaired person, the wiring for visible
emergency alarms may be installed but the alarms need not be installed
until such time as the unit is made ready for occupancy by a hearing-
impaired person.
Alteration means any change in a facility or its permanent fixtures
or equipment. It includes, but is not limited to, remodeling,
renovation, rehabilitation, reconstruction, changes or rearrangements in
structural parts and extraordinary repairs. It does not include normal
maintenance or repairs, reroofing, interior decoration, or changes to
mechanical systems.
Applicant for assistance means one who submits an application,
request, plan, or statement required to be approved by a Department
official or by a primary recipient as a condition of eligibility for
Federal financial assistance. An application means such a request, plan
or statement.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities receiving Federal financial assistance. For example,
auxiliary aids for persons with impaired vision may include readers,
Brailled materials, audio recordings, and other similar services and
devices. Auxiliary aids for persons with impaired hearing may include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Department or HUD means the Department of Housing and Urban
Development.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other real or
personal property or interest in the property.
Federal financial assistance means any assistance provided or
otherwise made available by the Department through any grant, loan,
contract or any other arrangement, in the form of:
(a) Funds;
(b) Services of Federal personnel; or
(c) Real or personal property or any interest in or use of such
property, including:
[[Page 135]]
(1) Transfers or leases of the property for less than fair market
value or for reduced consideration; and
(2) Proceeds from a subsequent transfer or lease of the property if
the Federal share of its fair market value is not returned to the
Federal Government.
Federal financial assistance includes community development funds in
the form of proceeds from loans guaranteed under section 108 of the
Housing and Community Development Act of 1974, as amended, but does not
include assistance made available through direct Federal procurement
contracts or payments made under these contracts or any other contract
of insurance or guaranty.
Handicap means any condition or characteristic that renders a person
an individual with handicaps.
Historic preservation programs or activities means programs or
activities receiving Federal financial assistance that have preservation
of historic properties as a primary purpose.
Historic properties means those properties that are listed or are
eligible for listing in the National Register of Historic Places, or
such properties designated as historic under a statute of the
appropriate State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities; has a record of such an impairment; or is regarded as having
such an impairment. For purposes of employment, this term does not
include: Any individual who is an alcoholic or drug abuser whose current
use of alcohol or drugs prevents the individual from performing the
duties of the job in question, or whose employment, by reason of current
alcohol or drug abuse, would constitute a direct threat to property or
the safety of others; or any individual who has a currently contagious
disease or infection and who, by reason of such disease or infection,
would constitute a direct threat to the health or safety of other
individuals or who, by reason of the currently contagious disease or
infection, is unable to perform the duties of the job. For purposes of
other programs and activities, the term does not include any individual
who is an alcoholic or drug abuser whose current use of alcohol or drugs
prevents the individual from participating in the program or activity in
question, or whose participation, by reason of such current alcohol or
drug abuse, would constitute a direct threat to property or the safety
of others. As used in this definition, the phrase:
(a) Physical or mental impairment includes:
(1) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech and hearing impairments, cerebral palsy,
autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, drug addiction
and alcoholism.
(b) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(c) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(d) Is regarded as having an impairment means:
(1) Has a physical or mental impairment that does not substantially
limit one or more major life activities but that is treated by a
recipient as constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits
one or more major life activities only as a result of the attitudes of
others toward such impairment; or
(3) Has none of the impairments defined in paragraph (a) of this
section
[[Page 136]]
but is treated by a recipient as having such an impairment.
Multifamily housing project means a project containing five or more
dwelling units.
Primary recipient means a person, group, organization, State or
local unit of government that is authorized or required to extend
Federal financial assistance to another recipient for the purpose of
carrying out a program or activity.
Program or activity means all of the operations of:
(a)(1) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(2) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(b)(1) A college, university, or other post-secondary institution,
or a public system of higher education; or
(2) A local educational agency (as defined in section 198(a)(10) of
the Elementary and Secondary Education Act of 1965), system of
vocational education, or other school system;
(c)(1) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(i) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(ii) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(2) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(d) Any other entity which is established by two or more of the
entities described in paragraphs (a), (b), or (c) of this section;
any part of which is extended Federal financial assistance.
Project means the whole of one or more residential structures and
appurtenant structures, equipment, roads, walks, and parking lots which
are covered by a single contract for Federal financial assistance or
application for assistance, or are treated as a whole for processing
purposes, whether or not located on a common site.
Qualified individual with handicaps means:
(a) With respect to employment, an individual with handicaps who,
with reasonable accommodation, can perform the essential functions of
the job in question; and
(b) With respect to any non-employment program or activity which
requires a person to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
recipient can demonstrate would result in a fundamental alteration in
its nature; or
(c) With respect to any other non-employment program or activity, an
individual with handicaps who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that
program or activity. Essential eligibility requirements include stated
eligibility requirements such as income as well as other explicit or
implicit requirements inherent in the nature of the program or activity,
such as requirements that an occupant of multifamily housing be capable
of meeting the recipient's selection criteria and be capable of
complying with all obligations of occupancy with or without supportive
services provided by persons other than the recipient. For example, a
chronically metally ill person whose particular condition poses a
significant risk of substantial interference with the safety or
enjoyment of others or with his or her own health or safety in the
absence of necessary supportive services may be qualified for occupancy
in a project where such supportive services are provided by the
recipient as part of the assisted program. The person may not be
qualified for a project lacking such services.
[[Page 137]]
Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended for any program
or activity directly or through another recipient, including any
successor, assignee, or transferee of a recipient, but excluding the
ultimate beneficiary of the assistance. An entity or person receiving
housing assistance payments from a recipient on behalf of eligible
families under a housing assistance payments program or a voucher
program is not a recipient or subrecipient merely by virtue of receipt
of such payments.
Replacement cost of the completed facility means the current cost of
construction and equipment for a newly constructed housing facility of
the size and type being altered. Construction and equipment costs do not
include the cost of land, demolition, site improvements, non-dwelling
facilities and administrative costs for project development activities.
Secretary means the Secretary of Housing and Urban Development.
Section 504 means section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 794, as it applies to programs or activities
receiving Federal financial assistance.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
[53 FR 20233, June 2, 1988; 54 FR 8188, Feb. 27, 1989]
Sec. 8.4 Discrimination prohibited.
(a) No qualified individual with handicaps shall, solely on the
basis of handicap, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity that receives Federal financial assistance from the
Department.
(b)(1) A recipient, in providing any housing, aid, benefit, or
service in a program or activity that receives Federal financial
assistance from the Department may not, directly or through contractual,
licensing, or other arrangements, solely on the basis of handicap:
(i) Deny a qualified individual with handicaps the opportunity to
participate in, or benefit from, the housing, aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in, or benefit from, the housing, aid, benefit, or service
that is not equal to that afforded to others;
(iii) Provide a qualified individual with handicaps with any
housing, aid, benefit, or service that is not as effective in affording
the individual an equal opportunity to obtain the same result, to gain
the same benefit, or to reach the same level of achievement as that
provided to others;
(iv) Provide different or separate housing, aid, benefits, or
services to individuals with handicaps or to any class of individuals
with handicaps from that provided to others unless such action is
necessary to provide qualified individuals with handicaps with housing,
aid, benefits, or services that are as effective as those provided to
others.
(v) Aid or perpetuate discrimination against a qualified individual
with handicaps by providing significant assistance to an agency,
organization, or person that discriminates on the basis of handicap in
providing any housing, aid, benefit, or service to beneficiaries in the
recipient's federally assisted program or activity;
(vi) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vii) Deny a dwelling to an otherwise qualified buyer or renter
because of a handicap of that buyer or renter or a person residing in or
intending and eligible to reside in that dwelling after it is sold,
rented or made available; or
(viii) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
other qualified individuals receiving the housing, aid, benefit, or
service.
(2) For purposes of this part, housing, aids, benefits, and
services, to be equally effective, are not required to produce the
identical result or level of achievement for individuals with
[[Page 138]]
handicaps and non-handicapped persons, but must afford individuals with
handicaps equal opportunity to obtain the same result, to gain the same
benefit, or to reach the same level of achievement.
(3) A recipient may not deny a qualified individual with handicaps
the opportunity to participate in any federally assisted program or
activity that is not separate or different despite the existence of
permissibly separate or different programs or activities.
(4) In any program or activity receiving Federal financial
assistance from the Department, a recipient may not, directly or through
contractual or other arrangements, utilize criteria or methods of
administration the purpose or effect of which would:
(i) Subject qualified individuals with handicaps to discrimination
solely on the basis of handicap;
(ii) Defeat or substantially impair the accomplishment of the
objectives of the recipient's federally assisted program or activity for
qualified individuals with a particular handicap involved in the program
or activity, unless the recipient can demonstrate that the criteria or
methods of administration are manifestly related to the accomplishment
of an objective of a program or activity; or
(iii) Perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same State.
(5) In determining the site or location of a federally assisted
facility, an applicant for assistance or a recipient may not make
selections the purpose or effect of which would:
(i) Exclude qualified individuals with handicaps from, deny them the
benefits of, or otherwise subject them to discrimination under, any
program or activity that receives Federal financial assistance from the
Department, or
(ii) Defeat or substantially impair the accomplishment of the
objectives of the program or activity with respect to qualified
individuals with handicaps.
(6) As used in this section, the housing, aid, benefit, or service
provided under a program or activity receiving Federal financial
assistance includes any housing, aid, benefit, or service provided in or
through a facility that has been constructed, altered, leased or rented,
or otherwise acquired, in whole or in part, with Federal financial
assistance.
(c)(1) Non-handicapped persons may be excluded from the benefits of
a program if the program is limited by Federal statute or executive
order to individuals with handicaps. A specific class of individuals
with handicaps may be excluded from a program if the program is limited
by Federal statute or Executive order to a different class of
individuals.
(2) Certain Department programs operate under statutory definitions
of handicapped person that are more restrictive than the definition of
individual with handicaps contained in Sec. 8.3 (see appendix B). Those
definitions are not superseded or otherwise affected by this regulation.
(d) Recipients shall administer programs and activities receiving
Federal financial assistance in the most integrated setting appropriate
to the needs of qualified individuals with handicaps.
(e) The obligation to comply with this part is not obviated or
alleviated by any State or local law or other requirement that, based on
handicap, imposes inconsistent or contradictory prohibitions or limits
upon the eligibility of qualified individuals with handicaps to receive
services or to practice any occupation or profession.
(f) The enumeration of specific forms of prohibited discrimination
in paragraphs (b) through (e) of this section does not limit the general
prohibition in paragraph (a) of this section.
[53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988]
Sec. 8.5 [Reserved]
Sec. 8.6 Communications.
(a) The recipient shall take appropriate steps to ensure effective
communication with applicants, beneficiaries, and members of the public.
(1) The recipient shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
receiving Federal financial assistance.
[[Page 139]]
(i) In determining what auxiliary aids are necessary, the recipient
shall give primary consideration to the requests of the individual with
handicaps.
(ii) The recipient is not required to provide individually
prescribed devices, readers for personal use or study, or other devices
of a personal nature.
(2) Where a recipient communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective communication systems shall be used.
(b) The recipient shall adopt and implement procedures to ensure
that interested persons (including persons with impaired vision or
hearing) can obtain information concerning the existence and location of
accessible services, activities, and facilities.
(c) This section does not require a recipient to take any action
that the recipient can demonstrate would result in a fundamental
alteration in the nature of a program or activity or in undue financial
and administrative burdens. If an action would result in such an
alteration or burdens, the recipient shall take any other action that
would not result in such an alteration or such burdens but would
nevertheless ensure that, to the maximum extent possible, individuals
with handicaps receive the benefits and services of the program or
activity receiving HUD assistance.
Subpart B--Employment
Sec. 8.10 General prohibitions against employment discrimination.
(a) No qualified individual with handicaps shall, solely on the
basis of handicap, be subjected to discrimination in employment under
any program or activity that receives Federal financial assistance from
the Department.
(b) A recipient may not limit, segregate, or classify applicants or
employees in any way that adversely affects their opportunities or
status because of handicap.
(c) The prohibition against discrimination in employment applies to
the following activities:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, injury or
illness, and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence for training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(d) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified applicants with
handicaps or employees with handicaps to discrimination prohibited by
this subpart. The relationships referred to in this paragraph (d)
include relationships with employment and referral agencies, labor
unions, organizations providing or administering fringe benefits to
employees of the recipient, and organizations providing training and
apprenticeship programs.
Sec. 8.11 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant with
handicaps or employee with handicaps, unless the recipient can
demonstrate that the accommodation would impose an undue hardship on the
operation of its program.
(b) Reasonable accommodation may include:
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(1) Making facilities used by employees accessible to and usable by
individuals with handicaps and
(2) Job restructuring, job relocation, part-time or modified work
schedules, acquisitions or modification of equipment or devices, the
provision of readers or interpreters, and other similar actions.
(c) In determining, under paragraph (a) of this section, whether an
accommodation would impose an undue hardship on the operation of a
recipient's program, factors to be considered include:
(1) The overall size of the recipient's program with respect to
number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
Sec. 8.12 Employment criteria.
(a) A recipient may not use any employment test or other selection
criterion that screens out or tends to screen out individuals with
handicaps or any class of individuals with handicaps unless:
(1) The recipient demonstrates that the test score or other
selection criterion, as used by the recipient, is job-related for the
position in question; and
(2) The appropriate HUD official demonstrates that alternative job-
related tests or criteria that tend to screen out fewer individuals with
handicaps are unavailable.
(b) A recipient shall select and administer tests concerning
employment to ensure that, when administered to an applicant or employee
who has a handicap that impairs sensory, manual, or speaking skills, the
test results accurately reflect the applicant's or employee's job
skills, aptitude, or whatever other factor the test purports to measure,
rather than the applicant's or employee's impaired sensory, manual, or
speaking skills (except where those skills are the factors that the test
purports to measure).
Sec. 8.13 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not make a preemployment inquiry or conduct a
preemployment medical examination of an applicant to determine whether
the applicant is an individual with handicaps or the nature or severity
of a handicap. A recipient may, however, make preemployment inquiry into
an applicant's ability to perform job-related functions.
(b) When a recipient is undertaking affirmative action efforts,
voluntary or otherwise, the recipient may invite applicants for
employment to indicate whether and to what extent they are handicapped,
if the following conditions are met:
(1) The recipient states clearly on any written questionnaire used
for this purpose, or makes clear orally if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations, or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential (as
provided in paragraph (d) of this section), that refusal to provide the
information will not subject the applicant or employee to any adverse
treatment, and that the information will be used only in accordance with
this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted before the employee's entrance on duty if all
entering employees in that category of job classification must take such
an examination regardless of handicap, and the results of such
examination are used only in accordance with the requirements of this
part.
(d) Information obtained under this section concerning the medical
condition or history of the applicant is to be collected and maintained
on separate
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forms that are accorded confidentiality as medical records, except that:
(1) Supervisors and managers may be informed of restrictions on the
work or duties of individuals with handicaps and informed of necessary
accommodations;
(2) First aid and safety personnel may be informed if the condition
might require emergency treatment; and
(3) Government officials investigating compliance with section 504
shall be provided relevant information upon request.