[Federal Register Volume 61, Number 174 (Friday, September 6, 1996)]
[Rules and Regulations]
[Pages 47380-47382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22775]



[[Page 47379]]


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Part V





Department of Housing and Urban Development





_______________________________________________________________________



24 CFR Parts 247, 880, and 884 Termination of Tenancy for Criminal 
Activity; Final Rule

  Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / 
Rules and Regulations  

[[Page 47380]]



DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 247, 880, and 884

[Docket No. FR-3472-F-02]
RIN 2502-AG12


Office of the Assistant Secretary for Housing-Federal Housing 
Commissioner; Termination of Tenancy for Criminal Activity

AGENCY: Office of the Assistant Secretary for Housing-Federal Housing 
Commissioner, HUD.

ACTION: Final rule.

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SUMMARY: This final rule provides that any criminal activity that 
threatens the health, safety, or right to peaceful enjoyment of the 
premises by other residents; any criminal activity that threatens the 
health, safety, or right to peaceful enjoyment of their residences by 
persons residing in the immediate vicinity of the premises; any 
criminal activity that threatens the health, or safety of any on-site 
property management staff responsible for managing the premises; or any 
drug-related criminal activity on or near such premises, engaged in by 
a resident, any member of the resident's household, or any guest or 
other person under the resident's control shall be grounds for 
termination of tenancy.

EFFECTIVE DATE: October 7, 1996.

FOR FURTHER INFORMATION CONTACT: Barbara D. Hunter, Director, Program 
Management Division, Office of Multifamily Asset Management and 
Disposition, Room 6180, Department of Housing and Urban Development, 
451 Seventh Street, S.W., Washington, D.C. 20410-8000; telephone, 
(voice) (202) 708-3944; (TTY) (202) 708-4594. (These are not toll-free 
numbers.)

SUPPLEMENTARY INFORMATION:

The Proposed Rule

    On February 3, 1994, the Department published in the Federal 
Register a proposed rule (59 FR 5155) that would provide that any 
criminal activity that threatens the health, safety, or right to 
peaceful enjoyment of the premises by other tenants; any criminal 
activity that threatens the health, safety, or right to peaceful 
enjoyment of their residences by persons residing in the immediate 
vicinity of the premises; or any drug-related criminal activity on or 
near such premises, engaged in by a tenant, any member of the tenant's 
household, or any guest or other person under the tenant's control 
would be grounds for termination of tenancy.
    The deadline for public comments on the proposed rule was April 4, 
1994. By that date, the Department received 130 comments. Most of these 
comments (111 out of 130) came from individuals or entities responsible 
for managing subsidized housing. The Department also received comments 
from several housing authorities and housing finance agencies, as well 
as from several public interest and legal aid associations.
    The majority of the public commenters (121 out of 130) supported 
the proposed rule. These commenters typically reported that criminal 
activity, particularly drug-related criminal activity, is the biggest 
problem faced by managers of subsidized housing. Many of these 
commenters stated that the provisions of the proposed rule will provide 
them legal strength in eviction proceedings; they asserted that judges 
often place more weight on Federal regulations than on the lease or 
other rules. Several commenters added that the provisions of the 
proposed rule would help them provide decent and safe housing to their 
tenants, and that such provisions are long overdue.
    Several commenters suggested revisions to the proposed rule. For 
instance, several commenters suggested that the Department define 
phrases such as ``on or near such premises,'' ``criminal activity,'' 
and ``any guest or other person under the tenant's control.'' These 
commenters asserted that these phrases are subject to differing 
interpretations, and they provide little guidance to a landlord trying 
to decide whether to pursue a termination of tenancy. Other commenters 
suggested that the Department broaden the provisions of the proposed 
rule to protect the health and safety of any on-site property 
management staff, because these individuals are often endangered by 
criminal activity.
    Six commenters expressed serious legal and policy concerns with the 
proposed rule. These commenters argued that the Department would 
violate several State and Federal statutes and the U.S. Constitution if 
it permitted the eviction of a tenant who did not commit, had no 
knowledge of, nor had means to stop the criminal activity. While the 
proposed rule echoes statutory language (42 U.S.C. 
1437f(d)(1)(B)(iii)), one commenter presented evidence that Congress 
intended to protect innocent tenants. These commenters argued further 
that the proposed rule should more closely track the public housing 
regulations, which provide that in the case of an eviction for criminal 
activity, the PHA shall have discretion to consider all the 
circumstances of the case, including the seriousness of the offense, 
the extent of participation by family members, and the effects that the 
eviction would have on family members not involved in the proscribed 
activity (24 CFR 966.4).

The Final Rule

    In response to public comments, this final rule represents two 
changes to the provisions of the proposed rule. First, the Department 
decided to include in this final rule criminal activity against on-site 
property management staff as grounds for termination of tenancy. 
Second, this final rule provides a definition for ``drug-related 
criminal activity.''
    While some of the commenters requested additional definitions, the 
Department has determined that such definitions would not, on balance, 
further the goals of this rule. Providing concrete definitions would be 
contrary to the recommendations of the national Occupancy Task Force. 
The Occupancy Task Force was convened under Congressional mandate, and 
it consisted of representatives of both housing providers and tenant 
advocacy/legal aid organizations. The Task Force was charged with 
issuing a final report to Congress and to HUD on occupancy and 
management recommendations in public and assisted housing. The members 
of the Occupancy Task Force observed in their Final Report, which was 
issued in April 1994, that they had considered defining related terms 
such as ``criminal activity that threatens,'' but they ``agreed that 
from a practical standpoint, it would be impossible to define this term 
since it turns on the facts in every given situation'' (page 3-7). 
(Notice of the availability of the final report was published in the 
Federal Register on July 21, 1994, 59 FR 37255). Furthermore, in 
accordance with several of the commenters, the Department intended that 
the provisions of this rule would parallel the public housing 
regulations; none of the terms suggested by the commenters are defined 
in the comparable public housing regulations.
    The Department has decided, however, to include the definition of 
``drug-related criminal activity'' in this final rule, because this 
definition is provided in section 8(f)(5) of the United States Housing 
Act of 1937. Accordingly, this final rule provides that ``drug-related 
criminal activity'' means the illegal manufacture, sale, distribution, 
use or possession with the intent to manufacture, sell, distribute, or 
use, of a controlled substance (as defined in section 102 of the 
Controlled Substances Act (21 U.S.C. 802)).

[[Page 47381]]

    With regard to the concerns raised by several commenters that the 
proposed rule could result in the eviction of an innocent tenant, the 
Department would like to emphasize that an owner may not evict any 
tenant except by judicial action pursuant to State or local law, and in 
accordance with the Department's due process procedures. This final 
rule applies uniformly to all assisted housing tenants. Furthermore, 
the Department adopted similar termination language (excluding the 
reference to project management employees) for the HUD Model Form of 
Lease (used for all subsidized multifamily housing programs) by 
Handbook 4350.3, Change 22 of June 1992.
    The Department believes that promulgation of this rule is 
consistent with sound program administration, is balanced and fair, and 
provides a valuable tool for fighting crime and drugs in assisted 
housing communities while maintaining requisite due process protections 
for the residents. Establishing criminal activity of a threatening 
nature and drug-related crime on or near the premises as clear grounds 
for termination of tenancy is supported by the recommendation (#58, 
page 3-7) of the Occupancy Task Force Final Report.
    This final rule revises 24 CFR parts 247, 880, and 884 by adding a 
definition of ``drug-related criminal activity'' and by revising the 
management provisions. Since the Department removed the management 
provisions of parts 881 and 883 in a final rule published on March 27, 
1996 (61 FR 13586), and replaced them with a cross-reference to the 
identical management provisions in part 880, it is unnecessary for the 
Department to amend parts 881 and 883 in this final rule.
    For purposes of existing housing under the section 8 loan 
management and property disposition programs (24 CFR part 886, subparts 
A and C), this final rule implements section 8(d)(1)(B)(iii) of the 
United States Housing Act of 1937 (42 U.S.C. 1437f), as that section 
was amended by the Cranston-Gonzalez National Affordable Housing Act 
and the Housing and Community Development Act of 1992. These two 
programs rely upon part 247 for termination of tenancy provisions. In 
addition, this final rule covers the following subsidized projects 
subject to the regulations in 24 CFR part 247: multifamily housing 
projects that receive the benefit of subsidy in the form of below-
market interest rates under sections 221(d) (3) and (5); interest 
reduction payments under section 236 of the National Housing Act, 
including Rental Assistance Payments (RAP); below-market interest rate 
direct loans under section 202 of the Housing Act of 1959; rental 
subsidy in the form of rent supplement payments under section 101 of 
the Housing and Urban Development Act of 1965; and section 8 in 
connection with section 202 Loans for Housing for the Elderly or 
Handicapped (24 CFR part 891); the Supportive Housing for the Elderly 
program and the Supportive Housing for Persons with Disabilities 
program (24 CFR part 891). (By final rule published on March 22, 1996 
(61 FR 11948), the regulations governing (1) Loans for Housing for the 
Elderly or Handicapped, formerly found in 24 CFR part 885, (2) 
Supportive Housing for the Elderly, formerly found in 24 CFR part 889, 
and (3) Supportive Housing for Persons with Disabilities, formerly 
found in 24 CFR part 890, were consolidated into a new part 24 CFR part 
891.) Finally, this rule also applies to evictions under the section 8 
new construction and substantial rehabilitation programs.

Other Matters

Environmental Impact

    A Finding of No significant Impact (FONSI) with respect to the 
environment was made at the time of the development of the proposed 
rule, in accordance with HUD regulations at 24 CFR part 50, which 
implement section 102(2)(c) of the National Environmental Policy Act of 
1969, 42 U.S.C. 4321 et seq. That FONSI remains applicable to this 
final rule and is available for public inspection between 7:30 a.m. and 
5:30 p.m. weekdays in the Office of the Rules Docket Clerk at the above 
address.

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 economic impact on 
a substantial number of small entities. This rule prohibits any 
criminal activity or drug-related criminal activity on or near premises 
where law-abiding tenants live.

Family Impact

    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has determined that this final rule has the 
potential for a significant impact on family formation, maintenance, 
and general well-being; this rule should increase the safety and 
security of families living in assisted housing. Since the impact of 
this rule on the family is beneficial, no further review is considered 
necessary.

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 rule would not have significant federalism 
implications and thus, are not subject to review under the order. This 
final rule will not interfere with or preempt State or local government 
functions.

Regulatory Planning and Review

    The Office of Management and Budget (OMB) reviewed this rule under 
Executive Order 12866, Regulatory Planning and Review, issued by the 
President on September 30, 1993. Any changes to the rule subsequent to 
its submission to OMB are identified in the docket file, which is 
available for public inspection between 7:30 a.m. and 5:30 p.m. 
weekdays in the Office of the Rules Docket Clerk, Department of Housing 
and Urban Development, Room 10276, 451 Seventh Street, SW., Washington, 
DC.

List of Subjects

24 CFR Part 247

    Grant programs--housing and community development, Loan programs--
housing and community development, Low and moderate income housing, 
Rent subsidies.

24 CFR Part 880

    Grant programs--housing and community development, Rent subsidies, 
Reporting and recordkeeping requirements.

24 CFR Part 884

    Grant programs--housing and community development, Rent subsidies, 
Reporting and recordkeeping requirements, Rural areas.

    Accordingly, 24 CFR parts 247, 880, and 884 are amended as follows:

PART 247--EVICTIONS FROM CERTAIN SUBSIDIZED AND HUD-OWNED PROJECTS

    1. The authority citation for 24 CFR part 247 is revised to read as 
follows:

    Authority: 12 U.S.C. 1701q, 1701s, 1715b, 1715l, and 1715z-1; 42 
U.S.C. 1437a, 1437c, 1437f, and 3535(d).

    2. Section 247.2 is amended by removing the paragraph designation 
for each definition, and by adding a definition ``Drug-related criminal 
activity'' in alphabetical order, to read as follows:

[[Page 47382]]

Sec. 247.2   Definitions.

* * * * *
    Drug-related criminal activity means the illegal manufacture, sale, 
distribution, use or possession with the intent to manufacture, sell, 
distribute, or use, of a controlled substance as defined in section 102 
of the Controlled Substances Act, 21 U.S.C. 802.
* * * * *
    3. Section 247.3 is amended by removing the word ``or'' from 
paragraph (a)(2); by redesignating paragraph (a)(3) as paragraph 
(a)(4); by amending paragraph (b) by removing the reference to 
``Sec. 247.3(a)(3)'' and adding in its place ``Sec. 247.3(a)(4)''; and 
by adding a new paragraph (a)(3); to read as follows:


Sec. 247.3   Entitlement of tenants to occupancy.

    (a) * * *
    (3) Any criminal activity that threatens the health, safety, or 
right to peaceful enjoyment of the premises by other residents; any 
criminal activity that threatens the health, safety, or right to 
peaceful enjoyment of their residences by persons residing in the 
immediate vicinity of the premises; any criminal activity that 
threatens the health, or safety of any on-site property management 
staff responsible for managing the premises; or any drug-related 
criminal activity on or near such premises, engaged in by a resident, 
any member of the resident's household, or any guest or other person 
under the resident's control shall be grounds for termination of 
tenancy.
* * * * *


Sec. 247.4   [Amended]

    4. In Sec. 247.4, paragraph (c) is amended by removing the 
reference to ``Sec. 247.3(a)(3)'' and by adding in its place 
``Sec. 247.3(a)(4).''

PART 880--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR NEW 
CONSTRUCTION

    5. The authority citation for 24 CFR part 880 continues to read as 
follows:

    Authority: 42 U.S.C. 1437a, 1437c, 1437f and 3535(d), and 13611-
13619.

    6. Section 880.201 is amended by adding the definition ``Drug-
related criminal activity'' in alphabetical order, to read as follows:


Sec. 880.201  Definitions.

* * * * *
    Drug-related criminal activity. The illegal manufacture, sale, 
distribution, use or possession with the intent to manufacture, sell, 
distribute, or use, of a controlled substance as defined in section 102 
of the Controlled Substances Act, 21 U.S.C. 802.
* * * * *
    7. Section 880.607 is amended by removing the word ``or'' from 
paragraph (b)(1)(ii); by redesignating paragraph (b)(1)(iii) as 
(b)(1)(iv); by amending paragraphs (b)(2) and (c)(2) by removing the 
references to ``(b)(1)(iii)'' and by adding in their places 
``(b)(1)(iv)''; and by adding a new paragraph (b)(1)(iii); to read as 
follows:


Sec. 880.607  Termination of tenancy and modification of leases.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Any criminal activity that threatens the health, safety, or 
right to peaceful enjoyment of the premises by other residents; any 
criminal activity that threatens the health, safety, or right to 
peaceful enjoyment of their residences by persons residing in the 
immediate vicinity of the premises; any criminal activity that 
threatens the health, or safety of any on-site property management 
staff responsible for managing the premises; or any drug-related 
criminal activity on or near such premises, engaged in by a resident, 
any member of the resident's household, or any guest or other person 
under the resident's control shall be grounds for termination of 
tenancy.
* * * * *

PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW 
CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING 
PROJECTS

    8. The authority citation for 24 CFR part 884 continues to read as 
follows:

    Authority: 42 U.S.C. 1437a, 1437c, 1437f and 3535(d), and 13611-
13619.

    9. Section 884.102 is amended by adding, in alphabetical order, a 
definition of ``Drug-related criminal activity'', to read as follows:


Sec. 884.102  Definitions.

* * * * *
    Drug-related criminal activity. The illegal manufacture, sale, 
distribution, use or possession with the intent to manufacture, sell, 
distribute, or use, of a controlled substance as defined in section 102 
of the Controlled Substances Act, 21 U.S.C. 802.
* * * * *
    10. Section 884.216 is amended by designating the current paragraph 
as paragraph (a), and by adding a new paragraph (b), to read as 
follows:


Sec. 884.216  Termination of tenancy.

* * * * *
    (b) Any criminal activity that threatens the health, safety, or 
right to peaceful enjoyment of the premises by other residents; any 
criminal activity that threatens the health, safety, or right to 
peaceful enjoyment of their residences by persons residing in the 
immediate vicinity of the premises; any criminal activity that 
threatens the health, or safety of any on-site property management 
staff responsible for managing the premises; or any drug-related 
criminal activity on or near such premises; or any drug-related 
criminal activity on or near such premises, engaged in by a resident, 
any member of the resident's household, or any guest or other person 
under the resident's control shall be grounds for termination of 
tenancy.

    Dated: May 31, 1996.
Nicholas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-22775 Filed 9-5-96; 8:45 am]
BILLING CODE 4210-27-P