# Notice on Site-Based Waiting Lists

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-294

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** January 7, 1997
- **Citation:** 62 FR 1026

## Text

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

EFFECTIVE DATE: January 7, 1997.

COMMENT DUE DATE: March 10, 1997.

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

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act Statement

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

II. Solicitation of Comments

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

III. Site-Based Waiting Lists

1. Purpose

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

2. Applicability

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

3. Background.

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

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

5. Submission and Review of Requests

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

[[Page 1028]]

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

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

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

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

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

6. HUD Processing of Requests

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

[[Page 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 non-discriminatory manner.
(5) All applicants may apply to any site(s) they choose, subject to
valid, current PHA admissions policies. Applicants currently on the
waiting list will maintain their original application date. However, in
its request under this notice, a PHA may request HUD approval to limit,
for reasons of administrative efficiency, the number of site-based
waiting lists to which an applicant may apply.
(6) The PHA must provide each applicant with an estimate of the
period of time the applicant would likely have to wait to be admitted
to units of different sizes and types (e.g., regular or accessible) at
each of the different sites.
(7) All offers of housing must be made from a central location.
Regardless of how many site-based waiting lists an applicant may be on,
an applicant's refusal of an offer, without good cause, at any site,
will result in the applicant's name being dropped to the bottom of all
public housing waiting lists at that PHA on which the applicant's name
appears.

7. HUD Monitoring

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

IV. Findings and Certifications

Environmental Impact

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

Executive Order 12612, Federalism

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

Executive Order 12606, The Family

The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this notice does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
order.

Executive Order 12866, Regulatory Planning and Review

The Office of Management and Budget (OMB) reviewed this notice
under Executive Order 12866, Regulatory Planning and Review. OMB
determined that this notice is a ``significant regulatory action,'' as
defined in section 3(f) of the Order (although not economically
significant, as provided in section 3(f)(1) of the Order). Any changes
made to the final rule subsequent to its submission to OMB are
identified in the docket file, which is available for public inspection
in the office of the Department's Rules Docket Clerk, Room 10276, 451
Seventh Street, SW, Washington, DC 20410-0500.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-294. Public record. Not legal advice.