HUD Rules for 55+

[Federal Register: April 2, 1999 (Volume 64, Number 63)]

[Rules and Regulations]

[Page 16323-16332]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr02ap99-10]

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Part IV

Department of Housing and Urban Development

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24 CFR Part 100

Implementation of the Housing for Older Persons Act of 1995; Final Rule

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 100

[Docket No. FR-4094-F-02]

RIN 2529-AA80

Implementation of the Housing for Older Persons Act of 1995

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal

Opportunity, HUD.

ACTION: Final rule.

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SUMMARY: This rule implements the Housing for Older Persons Act of 1995

(HOPA). HOPA amended the requirements for qualification for the housing

for persons who are 55 years of age or older portion of the ``housing

for older persons'' exemption established in the Fair Housing Act. In

addition, HOPA established a good faith defense against civil money

damages for persons who reasonably relied in good faith on the

application of the ``housing for older persons'' exemption even when,

in fact, the housing provider did not qualify for the exemption. This

rule updates HUD's regulations to reflect the changes made by HOPA.

EFFECTIVE DATE: May 3, 1999.

FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Director, Office of

Enforcement, Office of Fair Housing and Equal Opportunity, Room 5206,

451 Seventh Street, SW, Washington, DC 20410-0500, telephone (202) 708-

0836. (This is not a toll-free number.) Hearing or speech-impaired

individuals may reach this office by calling the toll-free Federal

Information Relay Service (TTY) at 1-800-877-8399.

SUPPLEMENTARY INFORMATION:

Information Collection Requirements

The information collection requirements contained in Secs. 100.306

and 100.307 of this rule 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 assigned approval

number 2529-0046. 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.

I. Background

A. The Housing for Older Persons Act of 1995

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968,

as amended, 42 U.S.C. 3601-3619) (the Act) exempts ``housing for older

persons'' from the Act's prohibitions against discrimination because of

familial status. Section 807(b)(2)(C) of the Act exempts housing

intended and operated for occupancy by persons 55 years of age or older

which satisfies certain criteria. HUD has adopted implementing

regulations further defining the ``housing for older persons''

exemption at 24 CFR part 100, subpart E.

The Housing for Older Persons Act of 1995 (Pub. L. 104-76, 109

Stat. 787, approved December 28, 1995) (HOPA) revised the definition of

the original exemption contained in the Act for housing designed and

operated for occupancy by persons who are 55 years of age of older.

Section 2 of HOPA redefined this portion of the exemption to describe

housing:

age or older, and--

(i) At least 80 percent of the occupied units are occupied by at

least one person who is 55 years of age or older;

(ii) The housing facility or community publishes and adheres to

policies and procedures that demonstrate the intent required under

this subparagraph; and

(iii) The housing facility or community complies with rules

issued by the Secretary [of HUD] for verification of occupancy,

which shall--

(I) Provide for verification by reliable surveys and affidavits;

and

(II) Include examples of the types of policies and procedures

relevant to a determination of compliance with the requirement of

clause (ii). Such surveys and affidavits shall be admissible in

administrative and judicial proceedings for the purposes of such

verification.

The new requirements under HOPA are equivalent to the original

provisions of the Fair Housing Act. Like the original section 807(b)(C)

of the Act, HOPA requires that a facility or community seeking to claim

the 55 and older exemption show three factors: (1) That the housing be

intended and operated for persons 55 years of age or older; (2) that at

least 80 percent of the occupied units be occupied by at least one

person who is 55 years of age or older; and (3) the housing facility or

community publish and adhere to policies and procedures that

demonstrate its intent to qualify for the exemption. The housing

facility or community must also comply with rules issued by HUD for the

verification of occupancy.

One substantive change made by HOPA was the elimination of

``significant facilities and services'' previously required by the Act

to meet the 55-and-older exemption. Section 807(b)(2)(C) of the Act

originally required that housing designed for persons who are 55 years

of age or older provide ``significant facilities and services

specifically designed to meet the physical or social needs of older

persons.'' HOPA also added the new requirement that a housing facility

or community seeking the 55-and-older exemption comply with HUD

regulations on verification of occupancy.

In addition, section 3 of HOPA added a new section 807(b)(5) to the

Act. This new section established a good faith defense against civil

money damages for a person who reasonably relies in good faith on the

application of the housing for older persons exemption, even when, in

fact, the housing facility or community does not qualify for the

exemption. New section 807(b)(5) provides:

(5)(A) A person shall not be held personally liable for monetary

damages for a violation of this title if such person reasonably

relied, in good faith, on the application of the exemption under

this subsection relating to housing for older persons.

(B) For purposes of this paragraph, a person may only show good

faith reliance on the application of the exemption by showing that--

(i) such person has no actual knowledge that the facility or

community is not, or will not be, eligible for such exemption; and

(ii) The facility or community has stated formally, in writing,

that the facility or community complies with the requirements for

such exemption.

B. This Rule

This rule revises Sec. 100.304, which presents an overview of the

exemption, to more closely track the HOPA requirements. The rule also

creates a new Sec. 100.305, which updates the 80 percent occupancy

requirements. A new Sec. 100.306 describes how a facility or community

may establish its intent to operate as housing designed for persons at

least 55 years of age or older. New Sec. 100.307 sets forth the

necessary procedures for verification of the 80 percent occupancy

requirements. Finally, a new Sec. 100.308 implements the good faith

defense against civil money damages.

Section 2 of HOPA requires that any implementing HUD regulations

``include examples of the types of policies and procedures relevant to

a determination of compliance with'' the statute's intent requirement.

Accordingly, paragraph (a) of Sec. 100.306 lists several factors which

HUD considers relevant in determining whether the housing facility or

community intends to operate as housing for older persons. Section

100.306(b) states, however, that such

[[Page 16325]]

phrases such as ``adult living'', ``adult community'', or similar

statements are inconsistent with the intent to establish housing for

older persons. Such phrases are not evidence that the facility or

community intends to operate as housing for older persons and are

inconsistent with that intent. HUD, in order to make an assessment of

intent, will consider all of the measures taken by the facility or

community to demonstrate the intent required by the Act. Moreover, the

housing facility or community may not evict or terminate leases of

families with children in order to achieve occupancy of at least 80

percent of the occupied units by at least one person 55 years of age or

older.

HUD also provides guidance to assist housing facilities and

communities in applying the requirements of this rule. These examples

are contained in an appendix to this rule. The appendix will not be

codified in title 24 of the CFR. HUD may update or revise the appendix

as necessary.

C. Discussion of Public Comments on the January 19, 1997 Proposed

Rule

The Housing for Older Persons Act (HOPA) was a remedial amendment

to the Fair Housing Act overwhelmingly passed by Congress in an attempt

to clarify the Act's senior housing exemption which Congress found was

being effectively repealed by the judicial and administrative

interpretation which the exemption had received.

Senator Brown described the purpose of HOPA as ``making the law

clearer and more workable for seniors * * * to protect seniors so that

they can, if they wish to, move to housing where they are protected in

their safety and their privacy.'' (Congressional Record, S. 18064).

Senate Report #104-172 describes the purpose as a ``return to the

original intent of the Fair Housing Act exemption Congress created in

1988. HOPA is designed to make it easier for a housing community of

older persons to determine whether they qualify for the Fair Housing

Act exemption''. While House Report 104-91 states ``legislation is

necessary to establish a workable and fair exemption to protect senior

citizens who wish to live in retirement community''. In short, HOPA was

passed in order to protect senior housing.

HUD published a proposed rule for comment on January 14, 1997, at

62 FR 2000, and received approximately 130 comments on the proposed

rule. The comments were evenly split between comments which expressed

the belief that the regulation went too far in allowing the creation or

continuation of senior housing and those which generally supported the

rule but felt that it should have done more to stabilize the conditions

at senior housing communities or which objected to isolated provisions.

Several of the specific points raised will be addressed later in the

preamble and have resulted in changes and refinements to the proposed

regulation. As a general response, some of the comments from each side

are based upon premises with which HUD does not agree. In addition,

Congress did not state that HOPA should be retroactively applied.

Therefore, a matter involving a claim of alleged discrimination

occurring before December 28, 1995 will be covered by those laws and

regulations in effect at the time of the claimed violation. Claims of

alleged discrimination occurring after December 28, 1995, but before

the effective date of this regulation will be analyzed using HOPA and

its legislative history.

Those who maintain that HUD's interpretation of the exemption

should be narrowed ignore the history of the senior housing exemption

and HOPA. Congress made explicit findings that HOPA was necessary

because of the narrow construction afforded the senior housing

exemption in the past. It would be contrary to the intent of the HOPA

to abolish the ``significant facilities and services'' requirement that

hindered senior housing only to construct new impediments by strictly

construing the remaining requirements. At the same time, Congress

provided no indication that it intended to change the usual standards

applicable in judicial constructions of exemptions, and, thus, HUD

believes that, as with any exemption to the Fair Housing Act, the

burden will be on the housing provider to prove that it meets the

requirements set forth in this regulation in order to qualify for the

exemption.

Others who believed that HUD should go further in specifying

exactly what must be done by each facility and community fail to take

into full account the limited nature of the exemption provided under

the law. The Fair Housing Act and its senior exemptions, as amended by

HOPA, do not provide standards for the proper operation of a senior

community; they are designed only to advise communities and facilities

what will not violate the familial status provisions of the Act. Most

aspects of living in a senior community are governed by private

contractual agreements between senior housing developers and

individuals who purchased or rented the dwelling. Other aspects may be

governed by state or local ordinances, particularly regarding mobile

and manufactured homes. These private agreements and local laws, for

the most part, are left undisturbed by HUD's interpretation of HOPA.

HUD has also taken into consideration the broader historical

aspects of the senior housing issue. Until the advent of the familial

status protection established in the Fair Housing Amendments Act of

1988, the senior housing industry was a well-established, accepted

component of housing options for seniors. With no federal law directly

applicable, the industry developed in a variety of configurations and

circumstances. Age restrictions in individual communities started at

various ages--age 40, age 45, age 50 and so forth. Many communities

defined themselves as ``adult'' communities, but in operation served

seniors. Many senior communities served mature residents who are

active, participating members of their communities. State and local

law, local custom, and various provisions of covenants and restrictions

affected how rules for occupancy were established or changed, against

whom those rules could be enforced, the senior community's interplay

with state and local land use and anti-discrimination statutes, and

other practical day-to-day issues of senior housing. Against the

backdrop of the nearly infinite number of possible scenarios, HUD and

courts attempted to enforce the 1988 provisions of the exemptions.

Congress has determined that those efforts did not achieve the desired

results, and amended the Act. The rules that are included here in final

form have attempted to the address the issue in the broadest possible

terms to account for the large variety of senior communities while

being sufficiently detailed to provide clear guidance on the

requirements of the senior housing exemption, without dictating results

which may be inconsistent with local practice or deny flexibility in a

variety of circumstances.

Opposition to the proposed rule came largely from Fair Housing

advocacy groups and some housing industry groups. The comments of the

Northern California Fair Housing Coalition (NCFHC), a coalition of 18

fair housing groups, is a representative example of the issues raised

by these groups. NCFHC urges that the rule be withdrawn or

significantly altered based on a strict interpretation of the exemption

which HUD believes is contrary to the clear Congressional intent.

Specifically, NCHFC considers Sec. 100.305(e)(5), the so called

``transition provision,'' to be without legal authority and bad public

policy because, they assert, it would allow communities with

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no senior residents to declare themselves housing for persons who are

55 years of age or older housing and discriminate against families with

children until they reach the 80% senior occupancy minimum.

A transition provision was first adopted in the August 18, 1995

final rule which was implemented prior to the passage of HOPA, but the

entire final rule was withdrawn in April 1996 after Congress passed

HOPA. The intent of the original transition provision was to provide a

mechanism to return to senior status for those former senior

communities who had abandoned, or did not achieve, senior status for

fear of law suits spawned by the pre-HOPA interpretations of the

exemption, especially the requirement that significant facilities and

services be provided, or for other reasons which Congress found were

contrary to the original intent of the exemption. As it has done in the

past, HUD is promulgating a transition provision under the authority of

42 U.S.C. 3607. As HUD noted in its comments to the previous final

rule, published on August 18, 1995:

The Act provides that a property ``shall not fail to meet the

requirements for housing for older persons by reason of * * * (B)

unoccupied units * * * '' 42 U.S.C. 3607. HUD believes it is

justified in interpreting the Act to allow a community which,

although it does not currently meet the 80 percent occupancy

requirement, to reserve all unoccupied units for occupancy by a

person 55 years of age or older. This may be the only way for a

community which believed that it was ineligible for ``housing for

older persons'' status, and which has therefore permitted occupancy

by families, to qualify for the exemption.

HUD is concerned, however, that an overly broad transition

provision may allow qualification for communities beyond those which

temporarily were unable to qualify for the exemption because of the

significant facilities and services provision or other interpretations

of the exemption, and which would otherwise have been eligible for the

exemption. For that reason, HUD has retained the transition provision,

but only for a period of one year from the date on which this

regulation becomes final, to allow communities which wish to qualify

for the 55-and-older exemption to qualify. At the end of the one year

period, the transition period will expire. HUD believes that this is a

more balanced approach that achieves a common sense solution to a

problem with equities on both sides. This represents the most

significant change in the rule. The one year limitation period will

require that those communities seeking to meet the 80% requirement have

at least 80% of their occupied units occupied by at least one person

who is 55 years of age or older by the expiration of the period in

order to qualify for the exemption. Vacant units reserved for occupancy

by persons who are 55 of age or older may not be counted in achieving

this standard. The transition provision may not be facilitated by

evicting or terminating the leases of resident households with minor

children.

The transition provision will expire at the end of one year from

the effective date of this regulation. A community or facility which

attempts to meet the exemption during the transition period,

unsuccessfully, must cease reserving vacant units for persons who are

55 years of age or older at the end of that period. Even if a facility

or community fails to meet the exemption during this transition period,

it will not be liable for discrimination on the basis of familial

status resulting from actions taken during the one year period if it

complies with all of the transition requirements during that time.

The NCFHC further objects to Sec. 100.305(c)(2) which references

``temporarily vacant'' dwellings. This provision is in response to the

situation where individuals move into ``senior parks'' as summer or

winter homes while others in the community remain year round. NCFHC

argues that only ``primary residences'' should be covered. There is no

support in the Congressional history or in HOPA for this

interpretation. HUD has held that a ``dwelling'' under the Act can

cover summer homes or even timeshare units. There is no reason to make

a distinction for senior housing. A unit which is occupied, even if

temporarily vacant while its residents are absent seasonally, on

vacation, or hospitalized, for example, is still occupied by that

resident. If, on the other hand, a unit is leased by its owners during

their absence, its current occupants, not its owners, are considered

for purposes of the exemption.

The fair housing advocates and several attorneys further objected

to Sec. 100.306(c) which addresses the effect of language in housing

documents on the intent requirement. HUD has consistently held that

intent is established by the totality of the facts. HUD is also aware

that prior to the adoption of protection for families with children in

the Fair Housing Amendments Act, housing communities and facilities had

established senior housing at an age other than 55 with a prohibition

against amending the covenants for a period of 25 years or more. It

would be unjust to deny such housing qualification for the exemption

when it meets the intent requirement in all other ways as well as

meeting the other requirements for the exemption and has done what it

can to eliminate language inconsistent with the exemption for housing

for persons 55 years of age or older. HUD notes, however, that in

circumstances where the community holds itself out as ``adult'' and its

legal documents describe occupancy in terms which are not consistent

with the 55-and-older exemption and no action has been taken to attempt

to change the applicable documents, the requisite intent requirement is

not met.

Other commenters have interpreted this provision as sanctioning

senior housing under federal law when state and local law prohibits or

restricts the establishment of senior housing in the particular

circumstances of that community. HUD has always allowed state or local

laws which impose requirements in addition to, but not inconsistent

with, those in the Act to apply. Moreover, to the extent that state or

local law interpretations require additional or different standards,

the Act's provisions must still be met to qualify for the exemption.

HUD urges senior communities to consult state or local units of

government to ensure that the housing community is also in compliance

with all applicable state and local requirements governing senior

housing.

Several commenters addressed specific actions of communities

purporting to be senior housing. These include such matters as

requirements that occupants join a homeowners association (HOA) or

whether a community must allow an under-aged heir to reside in the

community or the grandchild of a resident. None of these matters are

directly affected by the rule. These types of issues are governed by

private contractual agreements and local laws and practice. If there is

no independent law, deed restriction or other legally enforceable

requirement that an individual join a HOA, it is not required by HOPA.

Additionally, although HOPA would allow under-aged heirs, or minors

under the age of 18 years of age to reside in, or visit, housing for

persons who are 55 years of age or older, it does not require it. HUD

philosophically supports a compassionate community which has provisions

allowing some flexibility where the exemption would not be destroyed by

that flexibility, but there is no direct legal authority under the Act

to require it.

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There continues to be confusion concerning what is often referred

to as the 80/20 split. HOPA states that the minimum standard to obtain

housing for persons who are 55 years of age or older status is that

``at least 80%'' of the occupied units be occupied by persons 55 years

or older. There is no requirement that the remaining 20% of the

occupied units be occupied by persons under the age of 55, nor is there

a requirement that those units be used only for persons where at least

one member of the household is 55 years of age or older. Communities

may decline to permit any persons under the age of 55, may require that

100% of the units have at least one occupant who is 55 years of age or

older, may permit up to 20% of the occupied units to be occupied by

persons who are younger than 55 years of age, or set whatever

requirements they wish, as long as ``at least 80%'' of the occupied

units are occupied by one person 55 years of age or older, and so long

as such requirements are not inconsistent with the overall intent to be

housing for older persons.

The final regulation retains the provision that a unit occupied by

a person or persons as a reasonable accommodation to the disability of

an occupant need not be counted in meeting the 80% requirements. This

provision ensures that a community or facility seeking to authorize the

reasonable accommodation for a resident who, because of a disability,

requires an attendant, including family members under the age of 18,

residing in a unit in order for that person to benefit from the housing

will not have its exemption adversely affected by permitting the

accommodation. The authority for this provision arises under the Act's

requirement that reasonable accommodations be provided to persons with

disabilities.

Although occupancy by a person under the age of 55 who inherits a

unit or a surviving spouse who is younger than 55 years of age are the

original examples cited by Congress in justifying the original 80/20

split, HUD does not consider these to be the only appropriate uses of

the flexibility provided by the up to 20% allowed by the exemption, nor

are protections for those groups required. HUD believes that the

appropriate use of the 20%, if any, is at the discretion of the

community or facility and does not intend to impose more specific

requirements in this area. For example, a community could allow some

percentage of its units, up to 20%, to be made available to persons

over the age of 50, and, as long as the overall intent to be senior

housing remained clear, HUD would not have an objection. However, the

remaining portion of units not counted for purposes of meeting the 80%

requirement may not be segregated within a community or facility.

Some commenters offered opinions concerning the proper nomenclature

for senior communities and the consequences of using the ``wrong''

term. HUD believes that the best practice is to refer to such housing

as ``Senior Housing'' or ``A 55 and older community'' or ``retirement

community,'' and discourages the use of the terms ``adult housing'' or

similar language. While use of adult housing or similar phrases,

standing alone, do not destroy the intent requirement of HOPA, they

send a clear message which is inconsistent with the intent to be

housing for older persons. If a community or facility has clearly shown

its intent in other ways, and meets the 80% requirement, then the

intent requirement has been met even if the phrase ``adult'' or similar

terminology is occasionally used. However, a community which describes

itself as ``adult'' leaves itself vulnerable to complaints about its

eligibility for the exemption, which could result in an investigation

or litigation to determine whether the community in fact qualifies for

the exemption.

Other questions on the intent requirement concerned whether HUD

intended to require that all of the items in Sec. 100.306 be provided

and whether the examples of compliance with the intent requirement were

mandatory. HUD does not intend to impose any rigid requirements on

indicating intent. Section 100.306 only speaks to relevant factors to

be considered and the examples simply illustrate what could satisfy the

requirement. Intent is judged based on the common understanding of the

word and whether the community or facility has established through

various means whether they intend to operate housing for persons who

are 55 years of age or older.

Other commenters objected to the inclusion of a ``municipally zoned

area'' as a possible type of housing for persons who are 55 years of

age or older, while others questioned the use of the terminology of

``mobile home park'' instead of ``manufactured housing''. When former

Assistant Secretary Roberta Achtenberg conducted public hearings on the

``55 and over'' rule, HUD learned that there are a large variety of

senior housing communities, organized and administered in various ways.

HUD attempted to define the possibilities as broadly as possible to

include any type of housing which could qualify for the exemption.

On the issue of age verification, commenters had several diverse

suggestions. Several commenters urged that only the individual resident

should be able to attest to his or her age and that anyone not

cooperating with the survey should be considered to be not 55 years or

older. It is HUD's position that the test is whether 80% of the

occupied units are, in fact, occupied by persons 55 years or older.

This need only be documented through reliable survey, census or

affidavit, or other documentation, a copy of which should be retained

for recordkeeping purposes, and which confirms that the 80% threshold

is being met. A self certification of his or her age by an individual

will be adequate to meet this standard. An affidavit from someone who

knows the age of the occupant(s) and states his/her basis for the

knowledge is sufficiently reliable to satisfy the statute. To hold

otherwise would effectively allow 21% of a senior community to destroy

the exemption by not cooperating with verification procedures.

Other comments concerning verification were that the use of

immigration documents should be removed from the list of possible

sources of age verification lest it encourage discrimination against

legal immigrants. The option remains in the rule since it is only one

way of verifying age. HUD does not intend to require any particular

documentation be provided as a condition of occupancy, including

immigration documentation. If any individual chooses to verify by

providing a drivers license or affidavit instead of an immigration

document, the verification requirement will be satisfied. A summary of

the information gathered in support of the occupancy verification

should be retained for confirmation purposes. Copies of supporting

information gathered in support of the occupancy verification may be

retained in a separate file with limited access, created for the sole

purpose of complying with HOPA, and not in general or resident files

that may be widely accessible to employees or other residents. The

segregated documents may be considered confidential and not generally

available for public inspection. HUD, state or local fair housing

enforcement agencies, or the Department of Justice may review this

documentation during the course of an investigation.

Other commenters questioned the reference to a ``census'' as a

source of verification, noting that the census does not specify

individual names but

[[Page 16328]]

instead deals with ``census tracts'' and is often outdated. This is a

misunderstanding of HUD's view. HUD was not referring to the United

States Decennial Census for verification of occupancy. The reference is

to household censuses which are conducted by many cities and towns. The

language has been clarified.

Some commenters objected to the ``re-survey'' of the park every two

years as being unduly burdensome, especially if the list is actively

updated on an on-going basis. While HUD is sympathetic to those well-

managed communities which actively update lists of residents, it does

not feel that such communities would be unduly burdened by the update

since the information required will be readily available in the files.

HUD's experience in this area gives it reason to believe that if

surveys are not required to be updated periodically the quality of the

recordkeeping will deteriorate and create the opportunity for the

excessive litigation Congress sought to prevent. The re-survey does not

require that all supporting documents be collected again--only that the

community confirm that those persons counted as occupying dwellings for

purposes of meeting the 80% requirement are, in fact, still in

occupancy.

There were objections to making public information contained in an

age survey for fear that confidential information may be obtained by

someone attempting to prey on seniors. HUD believes that this is a

misinterpretation of the requirement. Only the overall survey summary

is required to be available for review, not the supporting

documentation. The word ``summary'' has been added to this section.

Some commenters felt that any affidavit should be signed under the

penalty of perjury to ensure the integrity of the process. Communities

which are concerned about misrepresentation of the age of occupants are

free to require that affidavits from occupants about the ages of

persons in their households be signed under the penalty of perjury,

just as they are free, consistent with state or local law, to require

that applications, leases, and other admission documents be signed

under oath, or under penalty of perjury. Statements from third party

individuals who have personal knowledge of the age of the occupants and

setting forth the basis for such knowledge may be used when occupants

decline to provide information verifying age, but such statements must

be made under penalty of perjury.

There were three comments concerning the ``good faith reliance''

exemption from monetary damages. The first questioned whether the

exemption covered just housing for persons who are 55 years of age or

older or all senior housing exemptions. A review of the language of

HOPA indicates the language is applicable whenever the housing for

older persons exemption may be claimed. The language has been adjusted

accordingly. The second comment concerned whether the term ``person''

covered only ``natural persons'' or whether it included business and

corporate entities. HUD believes Congress intended the ``good faith

reliance defense'' to be applicable only to natural persons. The

legislative history of the provision indicates that Congress intended

to protect individual persons, such as individual members of boards of

governing homeowners associations and real estate agents relying on

information provided to them by operators of senior communities, in

enacting this provision. House Report 104-91, at 10, describes this

portion of the amendment as being designed to allow a person engaged in

the business of residential real estate to show ``good faith reliance''

unless the person has actual knowledge that a facility or community is

not eligible for the exemption and describes individual real estate

agents as requiring protection in this area. This language indicates

that it is natural persons which Congress wished to protect from

damages awards in these circumstances.

To the extent that this interpretation may cause concern for

corporate publishers which may accept a notice describing a facility or

community as senior housing based on the representations of others and

without personal knowledge of the actual qualifications for

eligibility, HUD has already interpreted section 804(c) of the Act to

exclude from liability those entities which publish advertisements

regarding senior housing in good faith reliance on the assertions of

others. To the extent that there is further publication based on a

natural person's good faith reliance on a certification of eligibility

for an exemption, HUD foresees no grounds for further liability. In

other words, where the source of the information is a natural person

who has the written certification described in the final regulation and

further publication is based on that information, in the absence of

actual knowledge that a particular community or facility is not

eligible for the exemption, there is no liability for that publication.

The third issue identified by commenters deals with whether a claim

of ``good faith'' requires actual knowledge that the community had

certified in writing that it was housing for persons who are 55 years

of age or older. A review of the language of the Committee report

indicates that the eligibility for the claim of ``good faith'' relies

on the fact that the facility or community ``has certified to that

person, in writing and on oath or affirmation, that it complies with

the requirements'' for the exemption. (House Report 104-91 at 10)

Therefore, actual knowledge of the certification is required. Other: It

has become clear that there is confusion about the extent to which the

provisions of the Fair Housing Act relating to the housing for older

persons exemptions affect statutory eligibility requirements for

participation in federally funded housing programs. Neither HOPA nor

the Act change the definition of ``elderly family'' which mandates that

a family include the situation where the head, spouse or sole member is

age 62 or older. Neither HOPA nor the Act permit a HUD-funded public

housing provider to designate a project as being for the elderly

without HUD review and approval, even if the project would meet the

housing for older persons exemption under the Act. Similarly, HUD-

funded housing which is designated for the elderly may not admit

households which are not statutorily eligible for the housing (such as

limiting admissions to those who are 55 years of age or older rather

than the near elderly). Finally, no public housing development funded

by HUD may exclude families with children, even if at least 80% of the

units are occupied by at least one person who is 55 years of age or

older.

II. Findings and Certifications

Executive Order 12866

This rule was reviewed by the Office of Management and Budget (OMB)

under Executive Order 12866 on Regulatory Planning and Review, issued

by the President on September 30, 1993. OMB determined that this final

rule 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 in the rule subsequent

to its submission to OMB are identified in the docket file, which is

available for public inspection as provided under the section of this

preamble entitled ADDRESS.

Environmental Impact

In accordance with 24 CFR 50.19(c)(3) of the Department's

regulations published in a final rule on September 27, 1996 (61 FR

50914), the policy set

[[Page 16329]]

forth in this final rule is categorically excluded from the

requirements of the National Environmental Policy Act of 1969 (42

U.S.C. 4321-4347) and the authorities cited in 24 CFR 50.4.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official, under section 6(a)

of Executive Order 12612, Federalism, has determined that the policies

contained in this final rule will not have substantial direct effects

on States or their political subdivisions, or the relationship between

the Federal government and the States, or on the distribution of power

and responsibilities among the various levels of government. This rule

implements the requirements of HOPA by revising the provisions for

``55-or-older'' housing found at 24 CFR part 100, subpart E. It effects

no changes in the current relationships among the Federal government,

the States and their political subdivisions in connection with HUD

programs.

Regulatory Flexibility Act

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed and approved this final rule, and in so

doing certifies that this final rule will not have a significant

economic impact on a substantial number of small entities. This rule

updates HUD's regulations implementing the ``housing for older

persons'' exemption to the Fair Housing Act. Specifically, the rule

implements the statutory amendments made by HOPA. These revisions

provide housing facilities and communities with a better understanding

of what housing qualifies for the ``55-or-older'' exemption to the Fair

Housing Act's prohibitions against discrimination on the basis of

familial status. The final rule will not have any meaningful impact on

small entities.

List of Subjects in 24 CFR part 100

Aged, Fair housing, Individuals with disabilities, Mortgages,

Reporting and recordkeeping requirements.

Accordingly, 24 CFR part 100 is amended as follows:

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

1. The authority citation for 24 CFR part 100 continues to read as

follows:

Authority: 42 U.S.C. 3535(d), 3600-3619.

2. Subpart E is amended by revising Sec. 100.304 and by adding

Secs. 100.305, 100.306, 100.307, and 100.308, to read as follows:

Subpart E--Housing for Older Persons

* * * * *

Sec. 100.304 Housing for persons who are 55 years of age of older.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for persons 55 years of age or

older. Housing qualifies for this exemption if:

(1) The alleged violation occurred before December 28, 1995 and the

housing community or facility complied with the HUD regulations in

effect at the time of the alleged violation; or

(2) The alleged violation occurred on or after December 28, 1995

and the housing community or facility complies with:

(i) Section 807(b)(2)(C) (42 U.S.C. 3607(b)) of the Fair Housing

Act as amended; and

(ii) 24 CFR 100.305, 100.306, and 100.307.

(b) For purposes of this subpart, housing facility or community

means any dwelling or group of dwelling units governed by a common set

of rules, regulations or restrictions. A portion or portions of a

single building shall not constitute a housing facility or community.

Examples of a housing facility or community include, but are not

limited to:

(1) A condominium association;

(2) A cooperative;

(3) A property governed by a homeowners' or resident association;

(4) A municipally zoned area;

(5) A leased property under common private ownership;

(6) A mobile home park; and

(7) A manufactured housing community.

years of age or older.

Sec. 100.305 80 percent occupancy.

(a) In order for a housing facility or community to qualify as

housing for older persons under Sec. 100.304, at least 80 percent of

its occupied units must be occupied by at least one person 55 years of

age or older.

(b) For purposes of this subpart, occupied unit means:

(1) A dwelling unit that is actually occupied by one or more

persons on the date that the exemption is claimed; or

(2) A temporarily vacant unit, if the primary occupant has resided

in the unit during the past year and intends to return on a periodic

basis.

55 years of age or older means that on the date the exemption for

housing designed for persons who are 55 years of age or older is

claimed:

(1) At least one occupant of the dwelling unit is 55 years of age

or older; or

(2) If the dwelling unit is temporarily vacant, at least one of the

occupants immediately prior to the date on which the unit was

temporarily vacated was 55 years of age or older.

(d) Newly constructed housing for first occupancy after March 12,

1989 need not comply with the requirements of this section until at

least 25 percent of the units are occupied. For purposes of this

section, newly constructed housing includes a facility or community

that has been wholly unoccupied for at least 90 days prior to re-

occupancy due to renovation or rehabilitation.

(e) Housing satisfies the requirements of this section even though:

(1) On September 13, 1988, under 80 percent of the occupied units

in the housing facility or community were occupied by at least one

person 55 years of age or older, provided that at least 80 percent of

the units occupied by new occupants after September 13, 1988 are

occupied by at least one person 55 years of age or older.

(2) There are unoccupied units, provided that at least 80 percent

of the occupied units are occupied by at least one person 55 years of

age or older.

(3) There are units occupied by employees of the housing facility

or community (and family members residing in the same unit) who are

under 55 years of age, provided the employees perform substantial

duties related to the management or maintenance of the facility or

community.

(4) There are units occupied by persons who are necessary to

provide a reasonable accommodation to disabled residents as required by

Sec. 100.204 and who are under the age of 55.

(5) For a period expiring one year from the effective date of this

final regulation, there are insufficient units occupied by at least one

person 55 years of age or older, but the housing facility or community,

at the time the exemption is asserted:

(i) Has reserved all unoccupied units for occupancy by at least one

person 55 years of age or older until at least 80 percent of the units

are occupied by at least one person who is 55 years of age or older;

and

(ii) Meets the requirements of Secs. 100.304, 100.306, and 100.307.

(f) For purposes of the transition provision described in

Sec. 100.305(e)(5), a housing facility or community may not evict,

refuse to renew leases, or

[[Page 16330]]

otherwise penalize families with children who reside in the facility or

community in order to achieve occupancy of at least 80 percent of the

occupied units by at least one person 55 years of age or older.

(g) Where application of the 80 percent rule results in a fraction

of a unit, that unit shall be considered to be included in the units

that must be occupied by at least one person 55 years of age or older.

(h) Each housing facility or community may determine the age

restriction, if any, for units that are not occupied by at least one

person 55 years of age or older, so long as the housing facility or

community complies with the provisions of Sec. 100.306.

Sec. 100.306 Intent to operate as housing designed for persons who are

55 years of age or older.

(a) In order for a housing facility or community to qualify as

housing designed for persons who are 55 years of age or older, it must

publish and adhere to policies and procedures that demonstrate its

intent to operate as housing for persons 55 years of age or older. The

following factors, among others, are considered relevant in determining

whether the housing facility or community has complied with this

requirement:

(1) The manner in which the housing facility or community is

described to prospective residents;

(2) Any advertising designed to attract prospective residents;

(3) Lease provisions;

(4) Written rules, regulations, covenants, deed or other

restrictions;

(5) The maintenance and consistent application of relevant

procedures;

(6) Actual practices of the housing facility or community; and

(7) Public posting in common areas of statements describing the

facility or community as housing for persons 55 years of age or older.

(b) Phrases such as ``adult living'', ``adult community'', or

similar statements in any written advertisement or prospectus are not

consistent with the intent that the housing facility or community

intends to operate as housing for persons 55 years of age or older.

documents which is inconsistent with the intent to provide housing for

persons who are 55 years of age or older housing, HUD shall consider

documented evidence of a good faith attempt to remove such language in

determining whether the housing facility or community complies with the

requirements of this section in conjunction with other evidence of

intent.

(d) A housing facility or community may allow occupancy by families

with children as long as it meets the requirements of Secs. 100.305 and

100.306(a).

(Approved by the Office of Management and Budget under control

number 2529-0046)

Sec. 100.307 Verification of occupancy.

(a) In order for a housing facility or community to qualify as

housing for persons 55 years of age or older, it must be able to

produce, in response to a complaint filed under this title,

verification of compliance with Sec. 100.305 through reliable surveys

and affidavits.

(b) A facility or community shall, within 180 days of the effective

date of this rule, develop procedures for routinely determining the

occupancy of each unit, including the identification of whether at

least one occupant of each unit is 55 years of age or older. Such

procedures may be part of a normal leasing or purchasing arrangement.

provide for regular updates, through surveys or other means, of the

initial information supplied by the occupants of the housing facility

or community. Such updates must take place at least once every two

years. A survey may include information regarding whether any units are

occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4)

of Sec. 100.305.

(d) Any of the following documents are considered reliable

documentation of the age of the occupants of the housing facility or

community:

(1) Driver's license;

(2) Birth certificate;

(3) Passport;

(4) Immigration card;

(5) Military identification;

(6) Any other state, local, national, or international official

documents containing a birth date of comparable reliability; or

(7) A certification in a lease, application, affidavit, or other

document signed by any member of the household age 18 or older

asserting that at least one person in the unit is 55 years of age or

older.

(e) A facility or community shall consider any one of the forms of

verification identified above as adequate for verification of age,

provided that it contains specific information about current age or

date of birth.

(f) The housing facility or community must establish and maintain

appropriate policies to require that occupants comply with the age

verification procedures required by this section.

(g) If the occupants of a particular dwelling unit refuse to comply

with the age verification procedures, the housing facility or community

may, if it has sufficient evidence, consider the unit to be occupied by

at least one person 55 years of age or older. Such evidence may

include:

(1) Government records or documents, such as a local household

census;

(2) Prior forms or applications; or

(3) A statement from an individual who has personal knowledge of

the age of the occupants. The individual's statement must set forth the

basis for such knowledge and be signed under the penalty of perjury.

(h) Surveys and verification procedures which comply with the

requirements of this section shall be admissible in administrative and

judicial proceedings for the purpose of verifying occupancy.

(i) A summary of occupancy surveys shall be available for

inspection upon reasonable notice and request by any person.

(Approved by the Office of Management and Budget under control

number 2529-0046)

Sec. 100.308 Good faith defense against civil money damages.

(a) A person shall not be held personally liable for monetary

damages for discriminating on the basis of familial status, if the

person acted with the good faith belief that the housing facility or

community qualified for a housing for older persons exemption under

this subpart.

(b)(1) A person claiming the good faith belief defense must have

actual knowledge that the housing facility or community has, through an

authorized representative, asserted in writing that it qualifies for a

housing for older persons exemption.

(2) Before the date on which the discrimination is claimed to have

occurred, a community or facility, through its authorized

representatives, must certify, in writing and under oath or

affirmation, to the person subsequently claiming the defense that it

complies with the requirements for such an exemption as housing for

persons 55 years of age or older in order for such person to claim the

defense.

(3) For purposes of this section, an authorized representative of a

housing facility or community means the individual, committee,

management company, owner, or other entity having the responsibility

for adherence to the requirements established by this subpart.

[[Page 16331]]

(4) For purposes of this section, a person means a natural person.

(5) A person shall not be entitled to the good faith defense if the

person has actual knowledge that the housing facility or community does

not, or will not, qualify as housing for persons 55 years of age or

older. Such a person will be ineligible for the good faith defense

regardless of whether the person received the written assurance

described in paragraph (b) of this section.

Dated: March 25, 1999.

Eva M. Plaza,

Assistant Secretary for Fair Housing and Equal Opportunity.

Note: This Appendix will not be Codified in Title 24 of the CFR.

Appendix

Examples of Applications of HUD'S Regulations Governing the

Exemption for Housing for Persons 55 Years of Age or Older to the

Fair Housing Act

Sections

1. Purpose.

2. 80 percent occupancy.

3. Intent to operate as housing for persons who are 55 years of age

or older.

4. Verification of occupancy.

5. Future revisions to this appendix.

1. Purpose.

The Fair Housing Act (Title VIII of the Civil Rights Act of

1968, as amended, 42 U.S.C. 3601-3619) (the Act) exempts ``housing

for older persons'' from the prohibitions against discrimination

because of familial status. Section 807(b)(2)(C) of the Act exempts

housing intended and operated for occupancy by persons 55 years of

age or older that satisfies certain criteria. HUD has implemented

the ``housing for older persons'' exemption at 24 CFR part 100,

subpart E. Specifically, Secs. 100.304, 100.305, 100.306, and

100.307 set forth the requirements for housing seeking to qualify

for the exemption. The purpose of this appendix is to provide

guidance to housing facilities or communities in applying these HUD

requirements.

2. 80 Percent Occupancy.

Section 100.305 provides that in order for a housing facility or

community to qualify for the exemption, at least 80 percent of its

occupied units must be occupied by at least one person 55 years of

age or older. This occupancy requirement must be met at the time of

any alleged violation of the Act. Paragraph (f) of Sec. 100.305

states that where application of the 80 percent rule results in a

fraction of a unit, that unit shall be considered to be included in

the units that must be occupied by at least one person 55 years of

age or older.

Example: A community or facility contains 63 occupied units.

Eighty percent of 63 units equals 50.4. Under Sec. 100.305(d), 51

units would require occupancy by at least one person 55 years of age

or older to qualify as 55 and older housing.

Section 100.305 also sets forth the other requirements a housing

facility or community must follow in calculating occupancy. The

following examples illustrate these requirements:

Example 1:

Buena Vista is a condominium association of 120 units. On

September 13, 1988, twenty (20) of the occupied units are not

occupied by at least one person 55 years of age or older.

On April 1, 1998, Buena Vista declares itself to be housing for

persons 55 years of age or older. On that date:

(1) The twenty (20) persons described above are still residing

at Buena Vista;

(2) Ten (10) units of the total 120 units are unoccupied;

(3) One (1) of the units is occupied by the association's

maintenance supervisor; and

(4) Two (2) units are occupied only by live-in health aides who

provide reasonable accommodations to residents with disabilities and

who are under the age of 55.

How many of the occupied units must be occupied by at least one

person 55 years of age or older in order for Buena Vista to qualify

as 55-or-older housing?

Under Sec. 100.305(e), Buena Vista would calculate its

compliance with the 80 percent occupancy requirement by subtracting

the following units from the total 120 units:

(1) The 20 units not occupied by at least one person 55 years of

age or older on September 13, 1988 (See Sec. 100.305(e)(1));

(2) The ten (10) unoccupied units (See Sec. 100.305(e)(2));

(3) The one (1) unit occupied by the maintenance person (See

Sec. 100.305(e)(3)); and

(4) The two (2) units occupied by the health aides (See 42

U.S.C. 3607 (b)(3)(A) and 42 Sec. 100.305(e)(4)).

Subtracting these 33 units from the total of 120 units leaves 87

units. At least 80 percent of these 87 units must be occupied by at

least one person 55 years of age or older. Eighty percent of 87

equals 69.6. Due to Sec. 100.305(d), 70 units must be occupied by at

least one person 55 years of age or older. This example assumes that

the community also meets the requirements of Secs. 100.306 and

100.307.

Example 2:

Topaz House is a cooperative of 100 units. On January 20, 1998,

Topaz House announces its intent to be 55-or-older housing and

publishes policies and procedures sufficient to satisfy

Sec. 100.306. On that date, of the 100 total units:

(1) Sixty (60) of the occupied units are occupied by at least

one person 55 years of age or older;

(2) Thirty (30) of the occupied units do not have occupants 55

years of age or older; and

(3) Ten (10) units are unoccupied.

Since 60 out of the 90 occupied units are occupied by at least

one person 55 years of age or older, the Topaz House only has 67

percent of its occupied units occupied by at least one person 55

years of age or older.

Under Sec. 100.305(e)(5), Topaz House may still qualify for the

55-or-older exemption if, during a period which is one year from the

effective date of this regulation, it:

(1) Reserves all unoccupied units for occupancy by at least one

person 55 years of age or older until at least 80 percent of the

units are occupied by at least one person who is 55 years of age or

older; and

(2) Meets the requirements of Secs. 100.304, 100.305, 100.306,

and 100.307 and

(3) Within the one year period achieves occupancy of at least

80% of its occupied units by at least one person who is 55 years of

age or older.

There is no requirement that Topaz House take any action

concerning the residents under 55 years of age who are occupying

units on the date the building declares its intent to be 55-or-older

housing. Topaz may not evict, or terminate the leases of households

containing children under the age of 18, in order to qualify for the

exemption.

Example 3:

Snowbird City is a mobile home community in Texas with 100

units. Snowbird City complies with all other requirements of 55-or-

older housing, but is uncertain of its compliance with the 80

percent occupancy rule.

Fifty out of the 100 units are occupied year round. Of these

fifty units, 12 units are not occupied by at least one person 55

years of age or older. Of the remaining 50 units, 5 are unoccupied

and offered for sale, and the remaining 45 are occupied by at least

one person 55 years of age or older each winter on a routine and

reoccurring basis.

If a complaint of familial status discrimination is filed in

December, the community meets the 80 percent occupancy requirement

because 83 out of the 95 occupied units (87 percent), are occupied

by at least one person 55 years of age or older. If the complaint is

filed in July, Snowbird City still meets the requirement. Under

Sec. 100.305(b), a temporarily vacant unit is considered occupied by

a person 55 years of age or older if:

(1) The primary occupant has resided in the unit during the past

year; and

(2) The occupant intends to return on a periodic basis.

Example 4:

The King Philip Senior Community is a newly renovated building

originally built in 1952. It has been vacant for over one year while

extensive renovations were completed. The building contains 200

units. The King Philip Senior Community is intended to be operated

as a 55-or-older community.

Under Sec. 100.305(d), newly constructed housing need not comply

with the 80 percent occupancy requirement until 25 percent of the

total units are occupied. For purposes of Sec. 100.305(d), newly

constructed housing includes housing that has been unoccupied for at

least 90 days due to renovation or rehabilitation. Accordingly, the

King Philip Senior Community need not comply with the 80 percent

occupancy requirement until 50 out of its 200 units (25 percent) are

occupied. Subsequent to occupancy of the 50th unit, however, the

building will have to satisfy the 80 percent occupancy rule in order

to qualify as 55-or-older housing.

[[Page 16332]]

3. Intent to operate as housing for persons who are 55 years of age or

older.

Section 100.306 provides that in order for a housing facility or

community to qualify as housing for persons 55 years of age or

older, it must publish and adhere to policies and procedures that

demonstrate its intent to operate as housing for persons 55 years of

age or older. Section 100.306 also details the factors HUD will

utilize to determine whether a housing facility or community has met

this intent requirement. The following are examples of housing

facilities and communities which satisfy the intent requirement

described in Sec. 100.306:

Example 1:

A mobile home park which takes the following actions satisfies

the intent requirement:

(1) Posts a sign indicating that the park is 55-or-older

housing;

(2) Includes lease provisions stating that the park intends to

operate as 55-or-older housing; and

(3) Has provided local realtors with copies of the lease

provisions.

Example 2:

An area zoned by a unit of local government as ``senior

housing'' satisfies the intent requirement if:

(1) Zoning maps containing the ``senior housing'' designation

are available to the public;

(2) Literature distributed by the area describes it as ``senior

housing'';

(3) The ``senior housing'' designation is recorded in accordance

with local property recording statutes; and

(4) Zoning requirements include the 55-or-older requirement or a

similar provision.

Example 3:

A condominium association satisfies the intent requirement if it

has:

(1) Adopted, through its rules and regulations, restrictions on

the occupancy of units consistent with HUD's regulations governing

55-or-older housing at 24 CFR part 100, subpart E;

(2) Has distributed copies of the rules to all occupants; and

(3) Has notified local realtors of the restrictions.

The following is an example of a housing facility which has

failed to satisfy the intent requirement described in Sec. 100.306:

Example 4:

A homeowners association has failed to meet the intent

requirement if it has Covenants, Conditions and Restrictions which

refer to an ``adult community,'' has posted a sign stating ``A 40

and over community'' and has restricted visiting children to a

maximum of two weeks, but contains no similar restriction for

visiting adults.

4. Verification of occupancy.

Section 100.307 provides that in order for a housing facility or

community to qualify as 55-or-older housing, it must be able to

produce, in response to a complaint alleging a violation of the Act,

verification of compliance with Sec. 100.305 through reliable

surveys and affidavits. Paragraph (d)(7) of Sec. 100.307 includes

self-certifications in a list of documents considered reliable

documentation of the age of occupants. The self-certification may be

included in a lease or other document, and must be signed by an

adult member of the household asserting that at least one person in

the unit is 55 years of age or older. The following examples provide

acceptable provisions to demonstrate a self-certification process:

Example 1:

All new leases, new purchase agreements, or new applications

contain a provision directly above the signatory line for lessees,

asserting that at least one occupant of the dwelling will be 55

years of age or older. In addition, the community surveys all

current residents for their occupancy status in compliance with the

55-or-older requirements.

Example 2: Sample certification

I, (name), am 18 years of age or older and a member of the

household that resides at (housing facility or community), (unit

number or designation). I hereby certify that I have personal

knowledge of the ages of the occupants of this household and that at

least one occupant is 55 years of age or older.

Paragraph (e) of Sec. 100.307 requires that the housing facility

or community establish appropriate policies to require that all

occupants comply with the age verification procedures. The following

examples illustrate acceptable policies:

Example 1:

A condominium association establishes a rule that the board of

directors must approve all new occupants. One criteria for approval

is that new occupants of each unit inform the condominium

association whether at least one person occupying the unit is 55

years of age or older.

Example 2:

A homeowners association amends its Covenants, Conditions and

Restrictions, and records them at the appropriate government

recording office. The amendments require applicants to state whether

at least one occupant is 55 years of age or older.

Example 3:

The owner of a mobile home park where the residents own the

coach but rent the land requires a statement of whether at least one

occupant is 55 years of age or older before any sublease or new

rental.

5. Future revisions to this appendix.

HUD may update or revise this appendix as necessary.

[FR Doc. 99-8167 Filed 4-1-99; 8:45 am]

BILLING CODE 4210-28-P