06-994. Notice of Proposed Information Collection: Comment Request Implementation of the Housing for Older Persons Act of 1995

AGENCY:

Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD.

ACTION:

Notice.

SUMMARY:

The proposed information collection requirement establishment under the Final Rule implementing the Housing for Older Persons act of 1995 (HOPA) will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995. The Department is soliciting public comments on the information collection requirement.

DATES:

Comment Due Date: April 4, 2006.

ADDRESSES:

Interested persons are invited to submit comments regarding this proposed information collection requirement. Comments should refer to the proposed by name and/or OMB Control Number, and should be sent to: Turner M. Russell, Director, Enforcement Support Division, Office of Enforcement, Department of Housing and Urban Development, 4517th Street, SW., Room 5210, Washington, DC 20410-2000.

FOR FURTHER INFORMATION CONTACT:

Turner M. Russell, Director, Enforcement Support Division, Office of Enforcement, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 5210, Washington, DC 20410-2000; telephone: [phone] (this is not a toll-free number). Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at: [phone].

SUPPLEMENTARY INFORMATION:

The Department is submitting this proposed information collection requirement to the OMB for review, as required under the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35, as amended].

This notice is soliciting comments from members of the public and affected agencies concerning the proposed information collection in order to: (1) Evaluate whether the proposed information collection is necessary for the proper performance of the Department's program functions; (2) Evaluate the accuracy of the Department's assessment of the paperwork burden that may result from the proposed information collection; (3) Enhance the quality, utility and clarity of the information which must be collected; and (4) Minimize the burden of the information collection on responders, including the use of appropriate automated collection techniques or other forms of information technology (e.g., electronic transmission of data).

Title of Regulation: 24 CFR Part 100, Implementation of the Housing for Older Persons Act of 1995; Final Rule.

OMB Control Number, if applicable: 2529-0046.

Description of the need for the information and proposed use: In the Fair Housing Amendments Act of 1988 [42 U.S.C. 3601 et seq.], Congress prohibited discrimination in the sale, rental or advertising of housing based on familial status (individuals living with one or more children under 18 years of age). However, at section 3607(b)(2) of the Act, Congress exempted three (3) categories of “housing for older persons” from liability for familial status discrimination: (1) Housing providing under any State or Federal program which the Secretary of HUD determines is “specifically designed and operated to assist elderly persons (as defined in the State or Federal program)”; (2) housing intended for, and solely occupied by persons 62 years of age or order; and (3) housing intended and operate for occupancy by at least one person 55 years of age or older per unit [“55 or older” housing]. In December 1995, Congress passed the “Housing for Older Persons Act of 1995 (HOPA)” [Pub. L. 104-76]. The HOPA modified the “55 or older” housing exemption provided under § 3607(b)(2)(C) of the Act by eliminating the requirement for “significant facilities and services specifically designed to meet the physical or social needs of older persons.” The HOPA still requires that at least 80 percent of the occupied units must be occupied by at least one person who is 55 years of age of older; and that housing providers must publish and adhere to policies and procedures that demonstrate the intent to operate housing for persons 55 years of age or older. In addition, the HOPA mandates compliance with “rules issued by the Secretary for verification of occupancy, which shall * * * provide for [age] verification by reliable surveys and affidavits.”

The HOPA Final Rule does not significantly increase the Act's recordkeeping burden. It describes in greater detail the documentary evidence which HUD will consider when determining whether or not a housing facility or community qualifies for the “55 or older” housing exemption. Further, § 100.350(e)(5) of the HOPA Final Rule established a non extendible one-year transition period [May 3, 1999-May 3, 2000] for existing housing facilities or communities that wished to qualify for the “55 or older” housing exemption. An existing housing facility or community that failed to achieve compliance with the HOPA exemption requirements by May 3, 2000, was required to: (1) Cease reserving vacant units for “55 or older” residents; (2) market available dwellings to the general public regardless of familial status; and (3) rescind all policies, practices and procedures that discriminate against persons with minor children. By definition, such housing facilities communities would no longer need to collect or maintain occupancy/age verification information for purposes of the “55 or older” housing exemption.

The information collection requirements contained in §§ 100.306 and 100.307 of the HOPA Final Rule are necessary to satisfy the criteria for the “55 and older” housing exemption under the HOPA. The information required under the Act, the HOPA, and the HOPA Final Rule will be collected in the normal course of business in connection with the sale, rental or occupancy of dwelling units situated in qualified senior housing facilities or communities. The statutory and regulatory requirement to publish and adhere to age verification policies and procedures for current and prospective occupants is the usual and customary practice of the senior housing industry. The procedures for verifying the ages of current residents may require an initial occupancy survey, and periodic reviews and updates of existing age verification records for each occupied dwelling unit. The creation of such records should occur in the normal course of sale or rental transactions and should require minimal time.

Three types of information would be collected under the HOPA Final Rule. A housing provider's operating rules, policies and procedures are not privileged or confidential in nature, because such information must be disclosed to current and prospective residents, and to residential real estate professionals. Under §§ 100.307(i) of the HOPA Final Rule, a summary of the occupancy survey results must be made available for public inspection. This summary need not contain confidential information about residents; it may simply indicate the total number of dwelling units occupied by persons 55 years of age or older. The supporting age verification records may contain some private information; however, such information would be protected from disclosure unless the facility or community claims the “55 or older” housing exemption as a defense to a jurisdictional familial status discrimination complaint filed with HUD. HUD's Office of Fair Housing and Equal Opportunity will only require a housing provider to disclose such information when HUD investigates a jurisdictional familial status discrimination complaint, and the housing provider claims the “55 or older” housing exemption as an affirmative defense to the complaint.

Agency form number(s), if applicable: None.

Members of affected public: Both the HOPA and the HOPA Final Rule require that small businesses and other small entities that operate housing intended for occupancy by persons 55 years of age or older must routinely collect and update age verification information necessary to meet the eligibility criteria for the “55 or older” housing exemption. The recordkeeping requirements are the responsibility of the housing provider that wishes to qualify for the exemption.

Estimation of the total numbers of hours needed to prepare the information collection including the number of respondents, frequency of response, and hours of response: The information collection requirements of the HOPA Final Rule are the responsibility of the housing facility or community that claims eligibility for the “55 or older” housing exemption provided under the HOPA. Since the HOPA does not require HUD certification or registration for “55 or older” communities or facilities, it is difficult to estimate the number of housing facilities and communities that intend to collect this information in order to qualify for the exemption. When the HOPA Proposed Rule was published for public comment in January 1997, HUD estimated that approximately 1,000 facilities or communities would seek the exemption. HUD also estimated that the occupancy/age verification data would require routine updating with each new housing transaction within the facility or community, and that the number of such transactions per year might vary significantly depending on the size and nature of the facility or community. HUD estimated the average number of housing transactions per year at “10 per community.” HUD concluded that the publication of policies and procedures “* * * is likely to be a one-time event and in most cases will require no additional burden beyond what is done in the normal course of business. The estimated total annual burden for the three collections is 5,500 hours.”

Status of the proposed information collection: Extension of a currently approved collection.

Authority: The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.

Dated: January 26, 2006.

Jon L. Gant,

Deputy Assistant Secretary for Enforcement and Programs.