1026 Federal Register / Vol. 62, No. 4 / Tuesday, January 7, 1997 / Notices

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

[Docket No. FR–4131–N–01]

Notice on Site-Based Waiting Lists

AGENCY: Office of the Assistant

Secretary for Fair Housing and Equal

Opportunity, and Office of the Assistant

Secretary for Public and Indian

Housing, HUD.

ACTION: Notice.

SUMMARY: This notice invites certain

public housing agencies (‘‘PHAs’’) to

request approval of tenant selection and

assignment plans that vary from general

program requirements in order to

implement site-based waiting lists at

public housing sites under certain

circumstances. The notice explains

HUD policy on this matter and describes

the procedure for making such requests.

HUD will approve under this notice

only those requests that are consistent

with Title VI of the Civil Rights Act of

1964 (‘‘Title VI’’) and that meet the

other requirements of this notice.

EFFECTIVE DATE: January 7, 1997.

COMMENT DUE DATE: March 10, 1997.

FOR FURTHER INFORMATION CONTACT: Rod

Solomon, Senior Director for Policy and

Legislation, or Stephen I. Holmquist,

Policy Development Advisor, Office of

Policy, Program, and Legislative

Initiatives, Room 4116, (202) 708–0713,

or Linda Campbell, Director, Marketing,

Leasing and Management Division,

Office of Public and Assisted Housing,

Room 4206, (202) 708–0744,

Department of Housing and Urban

Development, 451 Seventh Street, SW.,

Washington, DC 20410, (202) 708–0713;

or Larry Pearl, Office of Fair Housing

and Equal Opportunity, Room 5226,

(202) 708–0288, U.S. Department of

Housing and Urban Development, 451

Seventh Street, SW., Washington, DC

20410, (202) 708–4252. Hearing or

speech-impaired individuals may access

these numbers via TTY by calling the

Federal Information Relay Service at 1–

800–877–8339. (With the exception of

the ‘‘800’’ number, these are not toll-free

numbers.)

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act Statement

The information collection

requirements contained in this Notice

have been submitted to the Office of

Management and Budget (OMB) for

review under the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501–3520) and

have been approved and assigned OMB

control number 2577–0214, which

expires March 31, 1997. An agency may

not conduct or sponsor, and a person is

not required to respond to, a collection

of information unless the collection

displays a valid control number.

II. Solicitation of Comments

HUD invites comments on this notice.

The comments will be taken into

consideration in the event HUD decides

to revise the procedures.

III. Site-Based Waiting Lists

1. Purpose

This notice invites certain public

housing agencies (‘‘PHAs’’) to request

approval of tenant selection and

assignment plans that vary from general

program requirements in order to

implement site-based waiting lists at

public housing sites under certain

circumstances. The notice explains

HUD policy on this matter and describes

the procedure for making such requests.

HUD will approve under this notice

only those requests that are consistent

with Title VI of the Civil Rights Act of

1964 (‘‘Title VI’’) (42 U.S.C. 2000d–1 et

seq.) and that otherwise meet the

requirements of this notice.

2. Applicability

This notice applies only to PHAs that

have Annual Contributions Contracts

covering a total of 1,250 or more public

housing units. For each such PHA, the

applicability of this notice (under the

criteria described below in this Section)

may be determined with respect to all

of the PHA’s public housing sites, or

may be determined separately with

respect to either the PHA’s mixedpopulation and elderly-designated sites

or the PHA’s general occupancy sites

(i.e., all sites other than mixedpopulation and elderly-designated

sites). Regardless of which of these

options a PHA chooses, this notice is

applicable where:

(a) At least 90 percent of the

occupants of the sites and at least 90

percent of the applicants on the

applicable public housing waiting list(s)

are persons of the same race; or

(b) At least 90 percent of the

occupants of the sites and at least 90

percent of the applicants on the

applicable public housing waiting list(s)

are of the same ethnicity.

This notice does not apply to PHAs

which are operating under a court order

involving civil rights violations; to

PHAs for which HUD has made a

determination of apparent noncompliance with Title VI or which are

currently operating under a Voluntary

Compliance Agreement; or to PHAs that

are operating under a settlement or

conciliation agreement providing for

class-wide relief for race or national

origin discrimination under the Fair

Housing Act.

HUD’s authority under 24 CFR

1.4(b)(2)(iii) to approve tenant selection

and assignment plans that vary from

general program requirements remains

in effect for PHAs that do not fit within

the bounds of this notice.

For purposes of this notice, each

‘‘site’’ may consist of:

(a) One public housing development,

(b) More than one public housing

development (by reason of proximity or

other geographic characteristics), or

(c) A portion of one or more public

housing developments (in the case of

scattered-site developments), as

proposed by the PHA and approved by

HUD under this notice. For purposes of

this notice, a PHA proposing site-based

waiting lists at its general occupancy

sites must include all of its general

occupancy units in an identified site,

and a PHA proposing site-based waiting

lists at its mixed population and

elderly-designated sites must include all

of its mixed population and elderlydesignated units in an identified site.

3. Background.

Title VI prohibits discrimination on

the grounds of race, color, and national

origin in any program or activity

receiving Federal financial assistance.

PHAs, as recipients of HUD funds, are

barred by Title VI from subjecting

housing residents to segregation or

separate treatment on any of these

grounds. HUD has implemented Title VI

through regulations at 24 CFR part 1.

With respect to public housing

admissions, the provisions of 24 CFR

1.4(b)(2)(ii) require PHAs to assign

eligible applicants to dwelling units in

accordance with a plan providing for

assignment on a community-wide basis.

Under this authority, HUD generally

requires assignment of applicants to

dwelling units from a single waiting list

(although PHAs may have one waiting

list for general occupancy units and

another for mixed population and

elderly-designated units). However,

HUD also has existing authority to

approve plans that vary from the general

requirement when such plans involve

housing programs in which persons of

one race or of one ethnicity predominate

and when such plans would be

consistent with Title VI. For the reasons

stated below, this notice invites PHAs to

request approval of such plans.

PHAs that do not meet the criteria set

forth in Section 2 of this notice may

request approval of site-based waiting

lists. However, such requests will not be

considered under the special processing

guidelines in this notice.
Federal Register / Vol. 62, No. 4 / Tuesday, January 7, 1997 / Notices 1027

4. Statement and Explanation of HUD

Policy

Federal funding of public housing

began with the United States Housing

Act of 1937. For the first 25 years of that

Act, the Federal government permitted,

if not encouraged, segregation by race in

public housing developments. Active

attempts by the Federal government to

desegregate public housing began only

with Executive Order 11063 issued by

President Kennedy in November 1962.

The order banned discrimination

prospectively in federally funded

housing, but sought to end

discrimination in existing developments

only through persuasion and voluntary

activity. Executive Order 11063 was

followed by passage of the 1964 Civil

Rights Act, Title VI of which barred

discrimination in all federally assisted

programs and provided for termination

of funding where discrimination

continued.

Policies to implement Title VI

through tenant selection and assignment

policies thereafter took a variety of

forms. The first iteration embodied

‘‘freedom of choice’’ principles.

Applicants were allowed to apply to the

housing development of their choice

based on available units and their place

on a waiting list. During

implementation of this policy,

segregation did not appreciably

diminish. Freedom of choice policies

did not address the effects of the site

selection process, by which

developments had been located in allwhite and all-black areas with tenants

assigned accordingly. In many cases, the

choice for tenants after these patterns

were established was between an allblack development in a black

neighborhood or an all-white

development in a white neighborhood.

An integrated development, much less

an integrated neighborhood, was rarely

an option. Even assuming fair

administration of the policy, which was

not always the case, it did not

effectively address the complexities of

the legacy of segregation.

HUD next required PHAs to adopt

community-wide waiting lists in which

applicants were offered vacancies based

on tenant selection preferences and the

date and time of application. If offers

were rejected, the applicants lost their

standing on the waiting list. In spite of

this effort, segregation continued,

apparently unabated and the situation

in many communities grew worse;

compliance was spotty and mechanisms

to ensure it (hearings and fund cut-offs)

were either unwieldy or politically

controversial. Where the policy was

enforced, it sometimes acted to

discourage all but the most desperate

applicants. Over time, the policy led

applicants to self-select: applicants

willing to be placed in those

developments with vacancies (often less

desirable developments) tended over

time to be minority families for whom

public housing was a last resort.

Other low-income federally assisted

housing programs created after

Executive Order 11063 and Title VI

provided housing in privately owned

apartment buildings and developments.

Unlike public housing, each private

development established its own

waiting list. This housing was

disproportionately utilized by nonminority applicants, leading to further

isolation of minority tenants in public

housing. Segregation was thus

exacerbated, and the use of a

community-wide waiting list to promote

integration in general occupancy public

housing was rendered even more

ineffective.

For these and other reasons, the

resident populations of a number of

large PHAs today are predominately of

one race or of one ethnicity. Assignment

of applicants to dwelling units in

accordance with a plan providing for

assignment from a single waiting list is

not an effective means of furthering

desegregation for such PHAs.

Abandoning this policy in favor of one

that allows applicants more options in

these circumstances should not be

expected to diminish civil rights

protections and will likely promote

other important values.

For instance, in an almost exclusively

one race public housing system, it is

very common to see only members of

that race applying for housing with that

PHA. In this situation, a change in

tenant policy is unlikely to worsen

segregation. It may, in fact, improve the

racial diversity and integration within

the PHA and its developments.

Individuals may be more willing to

apply for a particular public housing

site with which they are familiar, even

if they would be a racial minority

within that site. Thus, the site-based

waiting list option may increase racial

or ethnic diversity within the PHA’s

developments. As long as it did not lead

to resegregation or similar problems, the

policy will likely have a positive impact

on the fair housing environment within

the PHA.

On the other hand, if as a result of

implementing site-based waiting lists, a

PHA showed signs of becoming more

segregated, the fact that HUD had

approved the original application for

site-based lists would not insulate the

PHA from compliance with Title VI and

other applicable civil rights laws. This

circumstance could arise if an approved

PHA began marketing its various

developments on a racial or ethnic

basis. It could also occur if other

changes in operations, such as changes

to preference rules or demolition of a

significant portion of the PHA’s stock,

appear to cause the site-based waiting

list policy to have an unanticipated

discriminatory impact.

Site-based waiting lists can help to

foster a sense of community in public

housing neighborhoods by

strengthening existing ties to family,

school, work, and neighborhood

institutions and can also promote other

policy objectives of the public housing

program. For example, allowing

applicants to move to the development

of their choice, rather than assigning

them the first available unit, may attract

to public housing communities a more

diverse population with a broader range

of incomes. As a result, more working

families may apply to and move into

public housing, providing role models

and possibly access to information

about job opportunities for current

public housing residents. Serving

households with a broader range of

incomes would also lead to a reduction

in PHA operating subsidy needs.

In addition, recently-enacted and

proposed program reforms will make

PHAs in the future much more closely

linked to local housing markets. PHAs

will be required to make marketinfluenced decisions about rent levels,

income range preferences, the viability

of their developments, and other issues

that are necessarily site-based. Sitebased waiting lists could be an

important part of that new approach to

public housing management.

Therefore, for the reasons stated

above, this notice announces that HUD

will, subject to specific conditions, grant

approval of tenant selection and

assignment plans involving site-based

waiting lists where HUD determines

that, due to the predominance of

persons of one race or of one ethnicity

both in the current resident population

and on the applicable community-wide

applicant waiting list, a communitywide waiting list does not serve the

goals of Title VI in any demonstrable

way, and that site-based waiting lists are

consistent with Title VI.

5. Submission and Review of Requests

A. PHA Submission Requirements

A PHA may request HUD approval to

implement site-based waiting lists

under this notice by submitting its plan

and the rationale for it to HUD under

the procedures described in Section 6,

below. No such request shall be granted
1028 Federal Register / Vol. 62, No. 4 / Tuesday, January 7, 1997 / Notices

without the approval of the Assistant

Secretary for Fair Housing and Equal

Opportunity (‘‘FHEO’’) and the

Assistant Secretary for Public and

Indian Housing (‘‘PIH’’). Any such plan

must include all of the PHA’s general

occupancy sites and/or all of the PHA’s

mixed-population and elderlydesignated sites. This notice does not

address a PHA’s request to implement

site-based waiting lists at some of its

sites and not at others within these two

occupancy types.

A PHA’s request for HUD approval of

site-based waiting lists under this notice

must also include the information

described below. Where a site is

composed of more than one

development or a portion of one or more

developments, then the PHA must

provide the required information for

both the site and for the corresponding

development(s).

a. For each development/site operated

by the PHA:

—The development name, development

number, occupancy type (i.e., general

occupancy, mixed-population, or

elderly-designated), and number of

units by bedroom size;

—Date the development/site originally

became available for public housing

occupancy;

—Whether the development/site was

originally occupied on a segregated

basis by race or by ethnicity (as

applicable), if that information is

available; and

—Racial or ethnic composition (as

applicable), by bedroom size;

b. For the general occupancy and for

the mixed-population and elderlydesignated waiting lists, respectively,

the PHA must provide the date of the

oldest active application, the number of

applicants on the list, the racial or

ethnic composition, (as applicable), of

the waiting list by bedroom size and an

estimate of the length of the wait for an

offer by bedroom size.

c. For the PHA’s Section 8 program:

—The number of certificates and

vouchers currently in use by race or

by ethnicity (as applicable), and

bedroom size; and

—The length and composition of the

waiting list by race or by ethnicity (as

applicable), and by bedroom size.

d. All location(s) (e.g., developments,

sites, offices, or other places) at which

the PHA accepts applications for public

housing.

e. The PHA’s explanation of:

(1) How the proposed site-based

waiting list plan will improve the PHA’s

public housing program through

offering greater choice to applicants,

attracting working families to public

housing, or through other benefits, and

(2) Why the plan is consistent with

Title VI.

f. A summary of the PHA’s current

and proposed public housing tenant

selection and assignment procedures

along with a description of any Consent

Decrees, Voluntary Compliance

Agreements, or other documentation

related to past or current occupancy

problems and any measures taken to

correct such problems.

B. Other Information for HUD Review

In reviewing such requests, HUD will

also consider the following information,

which is already available to HUD:

a. Race, ethnicity, family (i.e., nonelderly), disabled, and elderly

population data for:

(1) Persons living in the relevant

Metropolitan Statistical Area (‘‘MSA’’);

(2) Persons living in the PHA’s

jurisdiction;

(3) Income-eligible persons living in

the relevant MSA; and

(4) Income-eligible persons living in

the jurisdiction.

b. Racial or ethnic composition of the

non-PHA housing in the neighborhood

around the PHA development/site.

6. HUD Processing of Requests

PHA requests for HUD approval of

site-based waiting lists shall be

processed in the following manner:

a. A PHA must submit one copy of its

request to the Assistant Secretary for

Fair Housing and Equal Opportunity

(‘‘FHEO’’) at HUD Headquarters, who

shall have lead responsibility to review

the request, and who shall provide a

copy of it to the Assistant Secretary for

Public and Indian Housing (‘‘PIH’’),

Attention: Marketing and Leasing

Management Division. The PHA must

also submit one copy of the request to

the Director of FHEO at the local HUD

office, who shall provide copies of it to

the local Director of PIH, the Secretary’s

Representative, and the State

Coordinator or Area Coordinator. The

PHA’s request must include the name

and telephone number of a contact

person who understands how the

proposed system is to work, who can

answer relevant questions, and who can

clarify the policies and procedures

described in the request. The Assistant

Secretary for FHEO and the Assistant

Secretary for PIH will make the final

determination on the request. HUD will

endeavor to process all complete

requests within 60 days of receipt by the

Assistant Secretary for FHEO.

b. HUD will approve PHA requests to

implement site-based waiting lists that

are consistent with Title VI and that

meet the other requirements of this

notice, as follows:

(1) The PHA has Annual

Contributions Contracts covering 1,250

or more public housing units;

(2) (a) At least 90 percent of the

occupants of all of the PHA’s public

housing units, of the PHA’s mixedpopulation and elderly-designated

units, or of the PHA’s general

occupancy units, as applicable, and at

least 90 percent of the applicants on the

applicable public housing waiting

list(s), are persons of the same race; or

(b) at least 90 percent of the occupants

of all of the PHA’s public housing units,

of the PHA’s mixed-population and

elderly-designated units, or of the PHA’s

general occupancy units, as applicable,

and at least 90 percent of the applicants

on the applicable public housing

waiting list(s) are of the same ethnicity.

(See Section 2, above, regarding the

separate application of this notice to a

PHA’s mixed-population and elderlydesignated sites and to its general

occupancy sites);

(3) The PHA is not operating under a

court order involving civil rights

violations; has not been found to be in

non-compliance with Title VI and is not

currently operating under a Voluntary

Compliance Agreement; and is not

operating under a settlement or

conciliation agreement providing for

class-wide relief for race or national

origin discrimination under the Fair

Housing Act; and

(4) The PHA submits Multi-Family

Tenant Characteristics Survey (MTCS)

reports (HUD Form 50058) in a

complete and timely manner.

c. In addition, all HUD approvals

under this notice will be subject to the

following conditions:

(1) Site-based waiting lists must be

implemented for all general occupancy

sites and/or all mixed-population and

elderly-designated sites;

(2) All locations where a PHA accepts

applications, including development/

site offices or a central office, must

accept applications for admission at all

of the PHA’s sites. If a PHA implements

site-based waiting lists at its general

occupancy sites, but not at its mixedpopulation and elderly-designated sites,

then the PHA may choose not to accept

general occupancy applications at its

mixed-population and elderlydesignated sites. If a PHA implements

site-based waiting lists at its mixedpopulation and elderly-designated sites,

but not at its general occupancy sites,

then the PHA may choose not to accept

mixed-population and elderlydesignated applications at its general

occupancy sites.
Federal Register / Vol. 62, No. 4 / Tuesday, January 7, 1997 / Notices 1029

(3) The PHA must make available

basic information about each site

(location, occupancy, number and size

of units, number and size of accessible

units, availability and accessibility of

amenities such as day care, security,

transportation, and training programs)

to all applicants at all sites;

(4) Preference policies established by

PHAs must operate in accordance with

law and HUD regulation. Preference

policies must be applied in a nondiscriminatory manner.

(5) All applicants may apply to any

site(s) they choose, subject to valid,

current PHA admissions policies.

Applicants currently on the waiting list

will maintain their original application

date. However, in its request under this

notice, a PHA may request HUD

approval to limit, for reasons of

administrative efficiency, the number of

site-based waiting lists to which an

applicant may apply.

(6) The PHA must provide each

applicant with an estimate of the period

of time the applicant would likely have

to wait to be admitted to units of

different sizes and types (e.g., regular or

accessible) at each of the different sites.

(7) All offers of housing must be made

from a central location. Regardless of

how many site-based waiting lists an

applicant may be on, an applicant’s

refusal of an offer, without good cause,

at any site, will result in the applicant’s

name being dropped to the bottom of all

public housing waiting lists at that PHA

on which the applicant’s name appears.

7. HUD Monitoring

HUD will monitor the implementation

of site-based waiting lists approved

under this notice for continued

compliance with Title VI annually.

IV. Findings and Certifications

Environmental Impact

In accordance with 24 CFR 50.19(c)(3)

of the HUD regulations, the policies and

procedures contained in this rule set out

nondiscrimination standards and,

therefore, are categorically excluded

from the requirements of the National

Environmental Policy Act.

Executive Order 12612, Federalism

The General Counsel, as the

Designated Official for HUD under

section 6(a) of Executive Order 12612,

Federalism, has determined that the

provisions in this notice does not affect

the relationship between the Federal

Government and the States and other

public bodies or the distribution of

power and responsibilities among

various levels of government. Therefore,

the policy is not subject to review under

Executive Order 12612.

Executive Order 12606, The Family

The General Counsel, as the

Designated Official under Executive

Order 12606, The Family, has

determined that this notice does not

have potential for significant impact on

family formation, maintenance, and

general well-being, and, thus, is not

subject to review under the order.

Executive Order 12866, Regulatory

Planning and Review

The Office of Management and Budget

(OMB) reviewed this notice under

Executive Order 12866, Regulatory

Planning and Review. OMB determined

that this notice is a ‘‘significant

regulatory action,’’ as defined in section

3(f) of the Order (although not

economically significant, as provided in

section 3(f)(1) of the Order). Any

changes made to the final rule

subsequent to its submission to OMB

are identified in the docket file, which

is available for public inspection in the

office of the Department’s Rules Docket

Clerk, Room 10276, 451 Seventh Street,

SW, Washington, DC 20410–0500.

Dated: December 30, 1996.

Susan M. Forward,

Deputy Assistant Secretary for Enforcement

and Investigations.

Dated: December 30, 1996.

Kevin E. Marchman,

Acting Assistant Secretary for Public and

Indian Housing.

[FR Doc. 97–294 Filed 1–6–97; 8:45 am]

BILLING CODE 4210–28–P