[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13272-13273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7061]



      

[[Page 13271]]

_______________________________________________________________________

Part IV





Department of Housing and Urban Development





_______________________________________________________________________



Office of the Secretary



_______________________________________________________________________



24 CFR Parts 10 and 966



Public Housing Lease and Grievance Procedures; Final Rule

  Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules 
and Regulations  

[[Page 13272]]


DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Secretary

24 CFR Parts 10 and 966

[Docket No. FR-3819-F-02]
RIN 2501-AB92


Public Housing Lease and Grievance Procedures

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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

SUMMARY: On May 22, 1995 (60 FR 27058), HUD published a rule for public 
comment proposing to amend its regulations governing public notice and 
comment requirements and public housing lease and grievance procedures. 
This rule finalizes the policies set forth in the May 22, 1995 proposed 
rule. Specifically, this final rule clarifies that HUD is not required 
to use notice and comment rulemaking for issuance of a due process 
determination. This rule also authorizes Public Housing Agencies (PHAs) 
to bypass judicial eviction procedures, if the law of the jurisdiction 
permits eviction through administrative action. Additionally, this 
final rule corrects a typographical error currently contained in 24 CFR 
part 966.

EFFECTIVE DATE: April 25, 1996.

FOR FURTHER INFORMATION CONTACT: Linda Campbell, Director, Occupancy 
Division, Room 4206, Department of Housing and Urban Development, 451 
Seventh Street SW., Washington, D.C. 20410; Telephone numbers (202) 
708-0744; 1-800-877-8339 (Federal Information Relay Service TTY). 
(Other than the ``800'' number, these are not toll-free numbers.)

SUPPLEMENTARY INFORMATION:

I. Background

A. The May 22, 1995 Proposed Rule

    On May 22, 1995 (60 FR 27058), HUD published for public comment a 
rule proposing to revise HUD's regulations at 24 CFR part 10, governing 
public notice and comment requirements, and 24 CFR part 966, governing 
public housing lease and grievance procedures.
    Under 42 U.S.C. 1437d(k), a housing authority is generally required 
to provide a tenant with the opportunity for an administrative hearing 
before the commencement of eviction proceedings in the local landlord-
tenant courts. The statute and HUD's implementing regulations at 24 CFR 
part 966 state that for certain criminal-related evictions the housing 
authority may bypass the administrative hearing. However, HUD must 
first make a determination that local law requires a pre-eviction court 
hearing that provides the basic elements of due process.
    In HUD's view, the issuance of a due process determination is not a 
rule, and is therefore not subject to 24 CFR part 10's notice and 
comment rulemaking requirements. However, in its decision in Yesler 
Terrace Community Council v. Cisneros, the Ninth Circuit held that the 
due process determination for the State of Washington was a rule to 
which part 10 applied. The Yesler decision has meant that Public 
Housing Agencies (PHAs) in the States comprising the Ninth Circuit 
cannot rely on the HUD due process determinations issued for those 
States. Even for jurisdictions outside the Ninth Circuit, the decision 
in the Yesler case will inevitably lead to dispute and litigation 
concerning the ability of PHAs to rely on a HUD due process 
determination. In order to remedy this serious situation, the May 22, 
1995 rule proposed to amend part 10 to clarify that the issuance of a 
due process determination does not require prior public procedure.
    The May 22, 1995 rule also proposed to amend 24 CFR part 966. The 
amendment would permit PHAs to evict without bringing a court action if 
the law of the jurisdiction permits eviction by administrative action, 
after a due process administrative hearing, but does not require a 
court determination of the rights and liabilities of the parties. This 
proposed amendment was designed to avoid the necessity for duplicative 
administrative and judicial hearings.
    The May 22, 1995 proposed rule described in detail the amendments 
to 24 CFR parts 10 and 966.

B. Discussion of Public Comments on the May 22, 1995 Proposed Rule

    The public comment period on the proposed rule expired on July 21, 
1995. By close of business on that date, a total of 8 comments had been 
received. Six of the eight commenters expressed support for the May 22, 
1995 proposed rule and urged its adoption without change. As a result 
of this positive public response, HUD has decided to adopt the May 22, 
1995 proposed rule without change. A representative comment read:

[Our organization] strongly supports the proposed amendments to 
regulations governing eviction from public and Indian housing * * *. 
Granting these administrative hearings to persons engaged in serious 
criminal activity slows down the eviction process considerably, 
adversely affecting the quality of life in our developments for law-
abiding families * * *. We welcome the initiative taken by the 
Department of Housing and Urban Development * * *. This will provide 
support to the Housing Authorit[ies] in [their] efforts to 
expeditiously evict persons engaged in criminal activities.

    The other two commenters were opposed to the proposed amendment to 
part 966 which would permit certain PHAs to evict through 
administrative action. Both commenters believed that the proposed rule, 
by authorizing non-judicial evictions, would eliminate vital 
protections of the tenant's rights. For example, the commenters worried 
about the lack of a legally trained, impartial, presiding officer at 
administrative hearings. The commenters were also concerned about the 
lack of subpoena power in administrative eviction actions.
    HUD, while recognizing that there are substantive differences 
between administrative and judicial proceedings, does not agree with 
the commenters. This final rules provides adequate safeguards against 
wrongful evictions. Only PHAs located in States which authorize 
administrative evictions will be able to bypass judicial eviction 
procedures. The administrative hearings will have to comply with 
Constitutional due process requirements, as well as the grievance 
hearing procedures set forth at 24 CFR part 966. Additionally, the 
administrative determinations will be subject to review by the State's 
courts.

C. Technical Correction of Sec. 966.4(l)(3)(ii)

    Paragraph (l)(3) of Sec. 966.4 establishes the requirements for 
lease termination notices to public housing tenants. Paragraph 
(l)(3)(ii), which requires that the notice inform the tenant of the 
right to examine PHA documents directly relevant to the termination or 
eviction, contains a cross-reference to Sec. 944.4(m). The cross-
reference is incorrect, and should instead refer to Sec. 966.4(m). This 
final rule makes the necessary correction.

II. Other Matters

A. Impact on the Environment

    In accordance with 40 CFR 1508.4 of the regulations of the Council 
on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations, 
the policies and procedures contained in this rule relate only to HUD 
administrative procedures and, therefore, are categorically excluded 
from the requirements of the National Environmental Policy Act.

B. Federalism Impact

    The General Counsel, as the Designated Official under section 6(a) 
of Executive Order 12612, Federalism, has

[[Page 13273]]
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 final rule clarifies that HUD is not required to use notice 
and comment rulemaking procedures for issuance of a due process 
determination. Furthermore, this rule permits PHAs to evict without 
bringing a court action, if the law of the jurisdiction permits 
eviction by administrative action and does not require a court 
determination of the rights and liabilities of the parties. This final 
rule will effect no changes in the current relationships between the 
Federal government, the States and their political subdivisions.

C. Impact on the Family

    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has determined that this final rule does not 
have potential for significant impact on family formation, maintenance, 
and general well-being, and, thus, is not subject to review under this 
order. No significant change in existing HUD policies or programs will 
result from promulgation of this final rule, as those policies and 
programs relate to family concerns.

D. Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605 (b)) has reviewed and approved this rule, and in so doing 
certifies that this rule will not have a significant impact on a 
substantial number of small entities. This final rule merely concerns 
HUD's public housing lease and grievance procedures, and will not have 
any meaningful economic impact on any entity.

List of Subjects

24 CFR Part 10

    Administrative practice and procedure.

24 CFR Part 966

    Grant programs--housing and community development, Public housing.

    Accordingly, 24 CFR parts 10 and 966 are amended as follows:

PART 10--RULEMAKING: POLICY AND PROCEDURES

    1. The authority citation for part 10 is revised to read as 
follows:

    Authority: 42 U.S.C. 3535(d).

    2. Section 10.3 is amended by adding a new paragraph (c) to read as 
follows:


Sec. 10.3  Applicability.

* * * * *
    (c) This part is not applicable to a determination by HUD under 24 
CFR Part 966 (public housing) or 24 CFR Part 950 (Indian housing) that 
the law of a jurisdiction requires that, prior to eviction, a tenant be 
given a hearing in court which provides the basic elements of due 
process (``due process determination'').

PART 966--LEASE AND GRIEVANCE PROCEDURES

    3. The authority citation for part 966 is revised to read as 
follows:

    Authority: 42 U.S.C. 1437a, 1437d note, and 3535(d).

    4. Section 966.4 is amended by revising the first two sentences in 
paragraph (l)(3)(ii) and by revising paragraph (l)(4) to read as 
follows:


Sec. 966.4  Lease requirements.

* * * * *
    (l) * * *
    (3) * * *
    (ii) The notice of lease termination to the tenant shall state 
specific grounds for termination, and shall inform the tenant of the 
tenant's right to make such reply as the tenant may wish. The notice 
shall also inform the tenant of the right (pursuant to Sec. 966.4(m)) 
to examine PHA documents directly relevant to the termination or 
eviction. * * *
* * * * *
    (4) How tenant is evicted. The PHA may evict the tenant from the 
unit either:
    (i) By bringing a court action or;
    (ii) By bringing an administrative action if law of the 
jurisdiction permits eviction by administrative action, after a due 
process administrative hearing, and without a court determination of 
the rights and liabilities of the parties. In order to evict without 
bringing a court action, the PHA must afford the tenant the opportunity 
for a pre-eviction hearing in accordance with the PHA grievance 
procedure.
* * * * *
    5. In Sec. 966.51, paragraph (a)(2) is amended by redesignating 
paragraph (a)(2)(ii) as paragraph (a)(2)(iv) and adding new paragraphs 
(a)(2)(ii) and (a)(2)(iii) to read as follows:


Sec. 966.51  Applicability.

    (a) * * *
    (2) * * *
    (ii) The issuance of a due process determination by HUD is not 
subject to 24 CFR part 10, and HUD is not required to use notice and 
comment rulemaking procedures in considering or issuing a due process 
determination.
    (iii) For guidance of the public, HUD will publish in the Federal 
Register a notice listing the judicial eviction procedures for which 
HUD has issued a due process determination. HUD will make available for 
public inspection and copying a copy of the legal analysis on which the 
determinations are based.
* * * * *
    Dated: March 12, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-7061 Filed 3-25-96; 8:45 am]
BILLING CODE 4210-32-P