Pet Ownership for the Elderly and Persons With Disabilities, 63834-63838 [E8-25474]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Rules and Regulations]
[Pages 63834-63838]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25474]



[[Page 63833]]

-----------------------------------------------------------------------

Part IV





Department of Housing and Urban Development





-----------------------------------------------------------------------



24 CFR Part 5



Pet Ownership for the Elderly and Persons With Disabilities; Final Rule

Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / 
Rules and Regulations

[[Page 63834]]


-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR-5127-F-02]
RIN 2501-AD31


Pet Ownership for the Elderly and Persons With Disabilities

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends HUD's regulations governing the 
requirements for pet ownership in HUD-assisted public housing and 
multifamily housing projects for the elderly and persons with 
disabilities. Specifically, this final rule conforms these pet 
ownership requirements to the requirements for animals assisting 
persons with disabilities in HUD's public housing programs, other than 
housing projects for the elderly or persons with disabilities. This 
final rule follows publication of an October 15, 2007, proposed rule, 
and takes into consideration the public comments received on the 
proposed rule. In response to one comment, HUD has made a 
nonsubstantive change to the proposed rule. Specifically, consistent 
with the phrasing used in HUD's public housing pet ownership 
regulations, this final rule amends the assisted housing regulations to 
refer to ``animals that assist, support, or provide service to persons 
with disabilities.''

DATES: Effective Date: November 26, 2008.

FOR FURTHER INFORMATION CONTACT: Bryan Greene, Deputy Assistant 
Secretary for Enforcement and Programs, Department of Housing and Urban 
Development, 451 Seventh Street, SW., Room 5204, Washington, DC 20410-
2000; telephone number 202-619-8046 (this is not a toll-free number). 
Hearing- or speech-impaired persons may contact this number by calling 
the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 15, 2007, at 72 FR 58448, HUD published for public 
comment a proposed rule to revise HUD's regulations that apply to pet 
ownership in HUD-assisted housing for the elderly and persons with 
disabilities.
    Certain animals provide assistance or perform tasks for the benefit 
of a person with a disability. Such animals, often referred to as 
``assistance animals,'' ``service animals,'' ``support animals,'' or 
``therapy animals,'' provide disability related functions including, 
but not limited to, guiding visually impaired individuals, alerting 
hearing-impaired persons to sounds and noises, providing protection or 
rescue assistance, pulling a wheelchair, seeking and retrieving items, 
alerting individuals to impending seizures, and providing emotional 
support to persons who have a disability related need for such support.
    The pet ownership requirements applicable to public housing and 
multifamily housing projects for the elderly or persons with 
disabilities are codified at 24 CFR part 5, subpart C (``Pet Ownership 
for the Elderly or Persons With Disabilities''). Conversely, pet 
ownership by residents in public housing, except housing projects for 
the elderly or persons with disabilities and not including housing 
assisted under section 8 of the United States Housing Act of 1937 (42 
U.S.C. 1437f et seq.), is addressed at 24 CFR part 960, subpart G 
(``Pet Ownership in Public Housing'').
    The regulations codified at 24 CFR parts 5 and 960 contain minor 
differences in how they describe animals that assist persons with 
disabilities that qualify for exclusion from pet ownership rules. In 24 
CFR 5.303, entitled, ``Exclusion for animals that assist persons with 
disabilities,'' project owners and public housing agencies (PHAs) may 
not apply or enforce any pet rules developed under part 5 against 
individuals with animals that are used to assist persons with 
disabilities. Part 5, however, provides that owners or PHAs may require 
assistance animals to qualify for the exclusion. Project owners must 
grant this exclusion if: (1) The tenant or prospective tenant 
certifies, in writing, that the tenant or a member of his or her family 
is a person with a disability; (2) the animal has been trained to 
assist persons with that specific disability; and (3) the animal 
actually assists the person with a disability.
    In contrast, 24 CFR 960.705, entitled ``Animals that assist, 
support, or provide service to persons with disabilities,'' states that 
PHAs may not apply or enforce pet policies established under 24 CFR 
part 960 against animals that are necessary as a reasonable 
accommodation to assist, support, or provide service to persons with 
disabilities. This exclusion applies to animals that reside in public 
housing, other than housing developments for the elderly or persons 
with disabilities, and to such animals that visit these developments. 
The provisions in part 960 do not contain the tenant certification or 
the animal training requirements found in Sec.  5.303. PHAs, however, 
are authorized to verify that the animal qualifies as a reasonable 
accommodation under section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794) (Section 504) and the Fair Housing Act (Title VIII of the 
Civil Rights Act of 1968, as amended (42 U.S.C. 3601-3631)). An animal 
qualifies as a reasonable accommodation if: (1) An individual has a 
disability, as defined in the Fair Housing Act or Section 504, (2) the 
animal is needed to assist with the disability, and (3) the individual 
who requests the reasonable accommodation demonstrates that there is a 
relationship between the disability and the assistance that the animal 
provides.
    Although the differences between the exclusions contained in HUD's 
two pet ownership regulations are minor, the differing requirements 
have sometimes been a source of confusion to housing providers and 
program participants. The October 15, 2007, proposed rule addressed 
this issue by proposing to revise the pet ownership regulations in 24 
CFR part 5, subpart C to comport with 24 CFR part 960, subpart G. The 
proposed regulatory amendments were designed to reduce confusion and 
make it clear that the same exclusions for animals that assist persons 
with disabilities apply to the pet ownership requirements for all of 
HUD's public and assisted housing programs. The amendments do not 
change existing HUD policy, which applies Fair Housing Act and Section 
504 reasonable accommodation principles. Interested readers should 
refer to the preamble of the October 15, 2007, proposed rule for 
details regarding the proposed regulatory amendments to 24 CFR part 5.

II. This Final Rule; Change Made to the October 15, 2007, Proposed Rule

    This final rule follows publication of the October 15, 2007, 
proposed rule and takes into consideration the public comments received 
on the proposed rule. The public comment period on the proposed rule 
closed on December 14, 2007, and HUD received 28 public comments. 
Comments were received from PHAs, operators of HUD-assisted housing for 
the elderly and persons with disabilities, a state human rights 
commission, nonprofit and trade organizations engaged in affordable 
housing and community development programs, and other interested 
parties and stakeholders.
    After careful consideration of the issues raised by the commenters, 
HUD has made one change at the suggestion of public comment. 
Specifically, HUD has taken the opportunity afforded by this final rule 
to conform the phrasing used in 24 CFR part 5, subpart C, to

[[Page 63835]]

qualify assistance animals to the phrasing used in 24 CFR part 960, 
subpart G. This change does not alter the substance of the part 5 
requirements, but is designed to bring greater uniformity and clarity 
to HUD's pet ownership regulations.

III. Discussion of the Public Comments on the October 15, 2007, 
Proposed Rule

    This summary of comments presents the major issues and concerns 
raised by the public commenters on the October 15, 2007, proposed rule, 
and HUD's responses to those issues.
    Comment: Every elderly person should be allowed a pet. One 
commenter expressed the view that every elderly person should be 
allowed to have a pet, without restriction or certification.
    HUD Response. The Department's existing regulations that apply to 
pet ownership in HUD-assisted housing for the elderly and persons with 
disabilities in 24 CFR 5.315 already provide that residents may keep 
common household pets in accordance with the prescribed mandatory and 
discretionary pet rules in Sec. Sec.  5.350 and 5.318. The prescribed 
pet rules place reasonable limitations on pet ownership to ensure the 
health, safety, and well-being of all residents. The pet ownership 
conditions in 24 CFR 960.707 for public housing excluding housing for 
the elderly or persons with disabilities contain a similar provision 
permitting common household pets, subject to the reasonable 
requirements of the PHA.
    Comment: The proposed definition of service animal is too broad, 
and, therefore, ripe for abuse. Several commenters wrote that the 
proposed revision to the definition of ``service animal'' in Sec.  
5.303 would potentially include all animals as assistive or supportive, 
without regard to whether the animal had been trained to assist persons 
with a specific disability. The commenters wrote that, to date, the 
term ``service animal'' has had a narrow definition relating to animals 
with specialized training to assist persons with disabilities for 
specific purposes. The commenters wrote that the proposed change would 
create an ambiguity regarding what animals are permitted to reside in 
HUD-assisted housing. The commenters suggest that the alleged vagueness 
of the language will force property owners to make subjective decisions 
that may, in turn, lead to increased litigation, resulting in 
significant economic burden, especially for smaller PHAs. The 
commenters objected that the proposed rule would deter property 
managers from establishing policies to ensure that animals brought into 
the property are needed as a reasonable accommodation, and would create 
a situation in which a tenant can allege a right to keep any pet as a 
service animal.
    HUD Response. The Department does not agree that the revision 
broadens the scope of service animals in housing. The Department does 
not believe the final rule will create either ambiguity regarding which 
animals are permitted or lead to a situation in which a tenant can 
allege a right to keep any pet as a service animal. The Department's 
regulations do not provide a specific definition of the term ``service 
animal.'' The use of assistive animals, also referred to as ``service 
animals,'' ``support animals,'' ``assistance animals,'' or ``therapy 
animals,'' is governed by reasonable accommodation law. The 
Department's revision is not altering existing law on reasonable 
accommodation. Rather, by amending the language of the part 5 exclusion 
to correspond to Sec.  960.705, the Department is conforming the part 5 
regulation to statutory authority and to a longstanding HUD position on 
reasonable accommodation. Under both the Fair Housing Act and Section 
504, in order for a requested accommodation to qualify as a reasonable 
accommodation, the requester must have a disability, and the 
accommodation must be necessary to afford a person with a disability an 
equal opportunity to use and enjoy a dwelling. To show that a requested 
accommodation may be necessary, there must be an identifiable 
relationship, or nexus, between the requested accommodation and the 
person's disability. Thus, in the case of assistance/service animals, 
an individual with a disability must demonstrate a nexus between his or 
her disability and the function the service animal provides. The 
Department's position has been that animals necessary as a reasonable 
accommodation do not necessarily need to have specialized training. 
Some animals perform tasks that require training, and others provide 
assistance that does not require training. This position is also 
articulated in the Public Housing Occupancy Guidebook and the 
Multifamily Occupancy Handbook.
    Housing providers are entitled to verify the existence of the 
disability, and the need for the accommodation--if either is not 
readily apparent. Accordingly, persons who are seeking a reasonable 
accommodation for an emotional support animal may be required to 
provide documentation from a physician, psychiatrist, social worker, or 
other mental health professional that the animal provides support that 
alleviates at least one of the identified symptoms or effects of the 
existing disability.
    In addition, housing providers are not required to provide any 
reasonable accommodation that would pose a direct threat to the health 
or safety of others. Thus, if the particular animal requested by the 
individual with a disability has a history of dangerous behavior, the 
housing provider does not have to accept the animal into the housing. 
Moreover, a housing provider is not required to make a reasonable 
accommodation if the presence of the assistance animal would (1) result 
in substantial physical damage to the property of others unless the 
threat can be eliminated or significantly reduced by a reasonable 
accommodation; (2) pose an undue financial and administrative burden; 
or (3) fundamentally alter the nature of the provider's operations.
    For an extensive discussion of reasonable accommodation principles, 
see the ``Joint Statement of the Department of Housing and Urban 
Development and the Department of Justice: Reasonable Accommodations 
Under the Fair Housing Act'' (HUD/DOJ Joint Statement), available at: 
https://www.hud.gov/offices/fheo/disabilities/index.cfm.
    Comment: The proposed elimination of the animal training 
requirement may result in further confusion and lead to abuse. Several 
commenters, raising concerns similar to those raised by the comments on 
the definition of a service animal, objected to the elimination of the 
training and certification requirements. The commenters wrote that the 
proposed rule would open the door to abuse by allowing a tenant to 
obtain an animal without any verification of need. To expand the 
definition of animals exempt from the pet rules, while at the same time 
prohibiting property managers from confirming the need for the animal, 
might lead to litigation and other costly expenditures. The commenters 
wrote that the operative effect of the proposed amendment would be to 
exclude from any regulation at all, under either part 5 or part 960, 
not only animals that meet the traditional criteria for assistive or 
service animals, but also animals that have come to be known as 
``comfort pets.''
    HUD Response. The Department believes removing the animal training 
and certification requirements and conforming the language of the part 
5 exclusion to Sec.  960.705 will actually result in less confusion by 
improving uniformity in its regulations and by

[[Page 63836]]

conforming the regulations to HUD policy and existing case law. The 
Department does not believe that the elimination of the training 
requirement will in effect exclude all animals from the regulatory 
requirements. Under amended Sec.  5.303, the animal must be ``necessary 
as a reasonable accommodation to assist, support, or provide service to 
persons with disabilities'' in order to qualify under the exclusion 
from pet ownership policies. Persons with disabilities who cannot 
establish that they need the animal as a reasonable accommodation are 
not covered by the exclusion, and, therefore, must comply with the 
housing provider's pet rules if they wish to keep the animal.
    Both the Fair Housing Act and Section 504 require that in order to 
qualify as a reasonable accommodation, the requester must have a 
disability, and there must be a relationship between the requested 
accommodation and that person's disability. For example, the person 
with a disability who is requesting the assistance animal must 
demonstrate a disability-related need for the animal, such as service, 
or assistance, performing tasks for the benefit of a person with a 
disability, or providing emotional support that alleviates one or more 
identified symptoms or effects of a person's disability. Examples of 
disability-related functions, include, but are not limited to, guiding 
individuals who are blind or have low vision, alerting individuals who 
are deaf or hard of hearing to sounds, providing rescue assistance, 
pulling a wheelchair, fetching items, alerting persons to impending 
seizures, or providing emotional support to persons with disabilities 
who have a disability-related need for such support.
    Finally, the Department believes that removing the animal training 
requirement ensures equal treatment of persons with disabilities who 
need animals in housing as a reasonable accommodation, for a wide 
variety of purposes. While many animals are trained to perform certain 
tasks for persons with disabilities, others do not need training to 
provide the needed assistance. For example, there are animals that have 
an innate ability to detect that a person with a seizure disorder is 
about to have a seizure and can let the individual know ahead of time 
so that the person can prepare. This ability is not the result of 
training, and a person with a seizure disorder might need such an 
animal as a reasonable accommodation to his/her disability. Moreover, 
emotional support animals do not need training to ameliorate the 
effects of a person's mental and emotional disabilities. Emotional 
support animals by their very nature, and without training, may relieve 
depression and anxiety, and/or help reduce stress-induced pain in 
persons with certain medical conditions affected by stress.
    Comment: Proposed elimination of training component is inconsistent 
with the regulations implementing the Americans with Disabilities Act. 
Several commenters wrote that the applicable definition of the term 
``service animal'' is contained in the Department of Justice 
regulations implementing the Americans with Disabilities Act (ADA) (42 
U.S.C. 12101 et seq.). The commenters wrote that HUD regulations have 
never specifically defined the term ``service animal.'' Under the ADA 
regulations at 28 CFR 36.104, a service animal is defined as an animal 
``individually trained'' to do work or perform tasks for the benefit of 
an individual with a disability. The commenters wrote that this 
definition covers both ADA claims and claims under Section 504, which 
HUD is responsible for enforcing. Also according to the commenters, by 
eliminating the training requirement, the proposed rule contradicts the 
ADA definition.
    HUD Response. The Department does not agree that the definition of 
the term ``service animal'' contained in the Department of Justice 
regulations implementing the ADA should be applied to the Fair Housing 
Act and Section 504. The ADA governs the use of animals by persons with 
disabilities primarily in the public arena. There are many areas where 
the ADA and the Fair Housing Act and Section 504 contain different 
requirements. For example, accessibility is defined differently under 
the ADA than under the Fair Housing Act and Section 504.
    The Fair Housing Act and HUD's Section 504 regulations govern the 
use of animals needed as a reasonable accommodation in housing. HUD's 
regulations and policies pertaining to reasonable accommodation were 
constructed specifically to address housing and, furthermore, were 
enacted prior to the development and implementation of the ADA 
regulations. Thus, the requirements for assistance/service animals must 
be evaluated in the appropriate context of housing, and are independent 
of the ADA regulations that were formulated to meet the needs of 
persons with disabilities in a different context and were adopted 
subsequent to HUD's regulations.
    There is a valid distinction between the functions animals provide 
to persons with disabilities in the public arena, i.e., performing 
tasks enabling individuals to use public services and public 
accommodations, as compared to how an assistance animal might be used 
in the home. For example, emotional support animals provide very 
private functions for persons with mental and emotional disabilities. 
Specifically, emotional support animals by their very nature, and 
without training, may relieve depression and anxiety, and help reduce 
stress-induced pain in persons with certain medical conditions affected 
by stress. Conversely, persons with disabilities who use emotional 
support animals may not need to take them into public spaces covered by 
the ADA.
    Comment: The regulations should clarify that reasonable rules may 
be established to address health and safety concerns. Several 
commenters wrote that the proposed regulatory changes might create an 
unsafe living environment. These commenters wrote that the proposed 
rule has the potential to increase the number and types of animals 
living in assisted housing. The commenters suggested that the 
regulatory language be revised to clarify that project owners are 
permitted to establish reasonable rules to address legitimate concerns 
for the safe and sanitary management of all animals who live on the 
premises. These basic requirements include ensuring that animals are 
properly inoculated; meet minimal sanitary standards; are properly 
restrained; and are identified and registered with the project owner. 
The commenters wrote that the rights of all tenants deserve respect, 
and that reasonable regulations to ensure health, safety, and quiet 
enjoyment should maintain that respect without denying residents the 
right to have animals.
    HUD Response. The rule will not interfere with the ability of 
housing providers to address health and safety concerns that arise with 
respect to assistance animals. The final rule at Sec.  5.303(b)(3) 
states that nothing in subpart C ``affects any authority that project 
owners or PHAs may have to regulate animals that assist, support, or 
provide service to persons with disabilities, under federal, state, or 
local law.'' Project owners and PHAs thus continue to retain their 
authority to regulate animals that are exempt from the pet ownership 
requirements in accordance with federal, state, or local law.
    In addition, a person with a disability who uses an assistance 
animal is responsible for the animal's care and maintenance. For 
example, a housing provider may establish reasonable rules in lease 
provisions requiring a person

[[Page 63837]]

with a disability to pick up and dispose of his or her assistance 
animal's waste.
    The existing law on reasonable accommodation also addresses health 
and safety concerns. Under the Fair Housing Act, a housing provider 
need not make a dwelling available to any person whose tenancy 
constitutes a direct threat to the health or safety of other 
individuals or whose tenancy would result in substantial physical 
damage to the property of others. Consistent with that provision of the 
Fair Housing Act, a housing provider may exclude an assistance animal 
from a housing complex when that animal's behavior poses a direct 
threat and its owner takes no effective action to control the animal's 
behavior so that the threat is mitigated or eliminated.
    The determination of whether an assistance animal poses a direct 
threat must rely on an individualized assessment that is based on 
objective evidence about the specific animal in question, such as the 
animal's current conduct or a recent history of overt acts. The 
assessment must consider the nature, duration, and severity of the risk 
of injury; the probability that the potential injury will actually 
occur; and whether reasonable modifications of rules, policies, 
practices, procedures, or services will reduce the risk. In evaluating 
a recent history of overt acts, a provider must take into account 
whether the assistance animal's owner has taken any action that has 
reduced or eliminated the risk. Examples would include obtaining 
specific training, medication, or equipment for the animal.
    This direct threat provision of the Fair Housing Act requires the 
existence of a significant risk--not a remote or speculative risk. 
Accordingly, the determination cannot be the result of fear or 
speculation about the types of harm or damage an animal may cause, or 
evidence about harm or damage caused by other animals (See HUD/DOJ 
Joint Statement).
    Comment: Need for further guidance. Two commenters wrote that the 
issuance of formal legal guidance on the general requirement to provide 
reasonable accommodation to allow ``animals that assist, support, or 
provide service to persons with disabilities'' would be of great 
assistance to all concerned in the field. Such guidance would provide 
an invaluable sequel to the HUD/DOJ Joint Statement.
    HUD Response. The Department appreciates the commenters' interest 
in obtaining additional legal guidance. The HUD/DOJ Joint Statement and 
HUD's policy manuals and handbooks, including the Public Housing 
Occupancy Guidebook and the Multifamily Occupancy Handbook, currently 
provide applicable guidance on reasonable accommodation law. This rule 
does not alter existing law, which under both the Fair Housing Act and 
Section 504 requires that in order to qualify as a reasonable 
accommodation: (1) The requester must have a disability, and (2) there 
must be a relationship between the requested accommodation and the 
person's disability. Once this final rule takes effect, the Department 
will carefully consider, in light of the revisions in Sec.  5.303, 
whether there is a need to issue further guidance on reasonable 
accommodation.
    Comment: Efforts to achieve uniformity in HUD's pet regulations 
should involve conforming 24 CFR part 960 to 24 CFR part 5, not the 
other way around. Three commenters wrote that this action would more 
accurately reflect the position of the Department of Justice and 
federal judicial decisions. In seeking internal uniformity within its 
own regulations, HUD may actually be creating disunity in the legal 
principles applicable to service animals that are to be applied across 
the federal government.
    HUD Response. The Department does not agree that uniformity should 
be achieved by conforming 24 CFR part 960 to 24 CFR part 5. The HUD 
regulations addressing pet ownership in public housing do not include 
training or certification requirements and exclude from coverage of the 
regulation animals that ``assist, support or provide service to persons 
with disabilities'' (24 CFR 960.705). It is the Department's position 
that animals that are necessary as a reasonable accommodation do not 
necessarily need to be trained or meet certification requirements. This 
position is consistent with HUD Administrative Law Judge decisions, and 
with HUD handbooks and guidance used by the HUD Office of Housing and 
Office of Public and Indian Housing.
    In addition, the Department's position is consistent with federal 
case law that has recognized, in cases involving emotional support 
animals in the housing context, that whether a particular accommodation 
is reasonable is a fact-intensive, case-specific determination (Janush 
v. Charities Hous. Dev. Corp., 159 F. Supp. 2d 1133 (N.D. Cal. 2000); 
Majors v. Hous. Auth. of the County of DeKalb, Ga., 652 F.2d 454, 457-
58 (5th Cir. 1981) (remanding the case for trial on whether the 
plaintiff's disability required the companionship of a dog).
    The Department recognizes that its regulations continue to provide 
guidance on service animals that differs from the Department of 
Justice's regulations implementing the ADA--which define service 
animals as ``individually trained.'' However, there are legitimate 
reasons why the Fair Housing Act and housing covered under Section 504 
must cover emotional support animals, as well as other animals that may 
not need training to provide assistance to persons with other 
disabilities and that are not included under the ADA. In particular, 
assistance animals provide specific functions for persons with mental 
and emotional disabilities in the private setting of the home and do 
not require training. Generally, these animals are not needed in the 
public spaces covered by the ADA.
    Comment: The proposed language should be revised to make it fully 
uniform with the language of 24 CFR 960.705. One commenter wrote that 
uniformity among the regulations will not be achieved until all of the 
phrasing used to qualify the type of animals exempt from project 
owners' pet rules is the same.
    HUD Response. HUD agrees with the suggestion made by the commenter, 
and has revised the rule accordingly. HUD has taken the opportunity 
afforded by this final rule to conform the phrasing used in 24 CFR part 
5 to qualify assistance animals to the phrasing used in the part 960 
pet regulations. This change does not alter the substance of the part 5 
requirements, but is designed to bring greater uniformity and clarity 
to HUD's pet ownership regulations. Specifically, and in accordance 
with the part 960 language, this final rule amends Sec.  5.303 to 
consistently refer to ``animals that assist, support, or provide 
service to persons with disabilities.'' Section 5.303 currently refers 
to ``animals that assist persons with disabilities.''
    Comment: HUD should assess federal best practices regarding service 
animals. One commenter suggested that HUD should assess federal best 
practices concerning service, assistance, and companion animals 
implemented by other federal departments.
    HUD Response. The Department appreciates this comment and 
recognizes the value of evaluating federal best practices in order to 
best meet the needs of persons with disabilities. Once the final rule 
takes effect, the Department will consider whether further guidance is 
needed to ensure consistent application. At that time, the Department 
may elect to consider the policies of other federal departments. 
However, the needs of persons with disabilities in the housing arena 
are distinct from other settings,

[[Page 63838]]

such as in the public arena or in transportation. The Department must 
rely on its expertise specifically in the realm of HUD-assisted housing 
for the elderly and persons with disabilities and in public housing to 
best assess the rights and obligations of persons with disabilities and 
housing providers relating to the use of assistance animals.

IV. Findings and Certifications

Environmental Impact

    This final rule involves a policy document that sets out 
nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), 
this rule is categorically excluded from environmental review under the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires an agency to conduct a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements, unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. This final rule does 
not change existing HUD policy, which applies Fair Housing Act and 
Section 504 reasonable accommodation principles. Rather, the final rule 
conforms the pet ownership and exclusion provisions for animals that 
assist persons with disabilities contained in 24 CFR part 5, subpart C, 
with the provisions for assistance animals and reasonable accommodation 
for persons with disabilities contained in 24 CFR part 960, subpart G. 
As discussed above in this preamble, most of the differences between 
the two pet ownership regulations are minor and nonsubstantive. For 
example, the regulations currently use different phrasing, which is 
being conformed in this final rule. The most substantive change being 
made by this final rule is the removal of the animal training and 
tenant certification requirements currently codified at Sec.  5.303. To 
the extent this final rule has any impact on small entities, it would 
be to reduce the administrative and economic burdens associated with 
the oversight of these animal training and certification requirements.
    Accordingly, the undersigned certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies 
to assess the effects of their regulatory actions on state, local, and 
tribal governments and the private sector. This rule does not impose 
any federal mandate on state, local, or tribal government or the 
private sector within the meaning of UMRA.

Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications, if the rule 
either imposes substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts state 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This rule does not have federalism 
implications and does not impose substantial direct compliance costs on 
state and local governments nor preempt state law within the meaning of 
the Executive Order.

List of Subjects in 24 CFR Part 5

    Administrative practice and procedure, Aged, Claims, Crime, 
Government contracts, Grant programs--housing and community 
development, Individuals with disabilities, Intergovernmental 
relations, Loan programs--housing and community development, Low and 
moderate income housing, Mortgage insurance, Penalties, Pets, Public 
housing, Rent subsidies, Reporting and recordkeeping requirements, 
Social Security, Unemployment compensation, Wages.

0
Accordingly, for the reasons stated in the preamble, HUD amends 24 CFR 
part 5 to read as follows:

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

0
1. The authority citation for part 5 continues to read as follows:

    Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 3535(d), 
and Sec. 327, Pub. L. 109-115, 119 Stat. 2936.


0
2. Revise Sec.  5.303 to read as follows:


Sec.  5.303  Exclusion for animals that assist, support, or provide 
service to persons with disabilities.

    (a) This subpart C does not apply to animals that are used to 
assist, support, or provide service to persons with disabilities. 
Project owners and PHAs may not apply or enforce any policies 
established under this subpart against animals that are necessary as a 
reasonable accommodation to assist, support, or provide service to 
persons with disabilities. This exclusion applies to animals that 
reside in projects for the elderly or persons with disabilities, as 
well as to animals that visit these projects.
    (b) Nothing in this subpart C:
    (1) Limits or impairs the rights of persons with disabilities;
    (2) Authorizes project owners or PHAs to limit or impair the rights 
of persons with disabilities; or
    (3) Affects any authority that project owners or PHAs may have to 
regulate animals that assist, support, or provide service to persons 
with disabilities, under federal, state, or local law.

    Dated: October 10, 2008.
Roy A. Bernardi,
Deputy Secretary.
 [FR Doc. E8-25474 Filed 10-24-08; 8:45 am]
BILLING CODE 4210-67-P