[Federal Register Volume 61, Number 231 (Friday, November 29, 1996)]
[Rules and Regulations]
[Pages 60535-60540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30498]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR-4154-I-01]
RIN 2501-AC36


Revised Restrictions on Assistance to Noncitizens

AGENCY: Office of the Secretary, HUD.

ACTION: Interim rule.

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SUMMARY: Section 214 of the Housing and Community Development Act of 
1980 prohibits HUD from making certain financial assistance available 
to persons other than United States citizens, nationals, or certain 
categories of eligible noncitizens. This interim rule revises HUD's 
regulations governing assistance to noncitizens to incorporate the 
recent statutory amendments made to Section 214 by the Use of Assisted 
Housing by Aliens Act of 1996 (``Immigration Reform Act''). This rule, 
however, does not amend the noncitizen requirements for Indian Housing 
Authorities (IHAs). Further, this rule does not implement the 
provisions of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 (``Welfare Reform Act'') which concern 
immigration. The changes to HUD regulations required by that Act will 
be the subject of future rulemaking.

DATES: Effective date: November 29 1996.
    Comments due date: November 29, 1996.

ADDRESSES: Interested persons are invited to submit comments regarding 
the interim rule to the Office of General Counsel, Rules Docket Clerk, 
Room 10276, Department of Housing and

[[Page 60536]]

Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500. 
Communications should refer to the above docket number and title. 
Facsimile (FAX) comments are not acceptable. A copy of each 
communication submitted will be available for public inspection and 
copying during regular business hours (7:30 a.m. to 5:30 p.m. Eastern 
Time) at the above address.

FOR FURTHER INFORMATION CONTACT: For the covered programs, the 
following persons should be contacted:
    (1) For Public Housing, Section 8 Rental Certificate, Rental 
Voucher and Moderate Rehabilitation (except Single Room Occupancy--
``SRO'') programs--Linda Campbell, Office of Public Housing, Room 4206, 
Department of Housing and Urban Development, 451 Seventh Street, SW, 
Washington, DC 20410, telephone (202) 708-0744;
    (2) For the Section 8 Moderate Rehabilitation SRO program--Dave 
Pollack, Office of Special Needs Assistance Programs, Room 7262, 
Department of Housing and Urban Development, 451 Seventh Street, SW, 
Washington, DC 20410, telephone (202) 708-1234;
    (3) For the other Section 8 programs, the Section 236 programs, 
Housing Development Grants and Rent Supplement--Barbara Hunter, Office 
of Asset Management and Disposition, Room 6182, Department of Housing 
and Urban Development, 451 Seventh Street, SW, Washington, DC 20410, 
telephone (202) 708-3944; and
    (4) For the Section 235 homeownership program--Morris Carter, 
Office of Lender Activities and Program Compliance, Room 9156, 
Department of Housing and Urban Development, 451 Seventh Street, SW, 
Washington, DC 20410, telephone (202) 708-1515.
    For persons with hearing or speech impairment, the TTY number is 1-
800-877-8339 (Federal Information Relay Service TTY). With the 
exception of the ``800'' number, none of the foregoing telephone 
numbers are toll-free.

SUPPLEMENTARY INFORMATION:

I. Background

A. HUD's Implementation of Section 214 of the Housing and Community 
Development Act of 1980

    On March 20, 1995 (60 FR 14816), HUD issued its final rule 
implementing Section 214 of the Housing and Community Development Act 
of 1980 (42 U.S.C. 1436a) and that rule became effective on June 19, 
1995. Section 214 prohibits HUD from making certain financial 
assistance available to persons other than United States citizens, 
nationals, or specified categories of eligible noncitizens.
    HUD's March 20, 1995 final rule promulgated virtually identical 
``noncitizen'' regulations for the various HUD programs covered by 
Section 214. On March 27, 1996 (61 FR 13614), HUD, as part of its 
continuing regulatory reform efforts, published a final rule 
eliminating the repetitiveness of these duplicative regulations by 
consolidating the noncitizens requirements in a new subpart E to 24 CFR 
part 5. HUD established part 5 to set forth those requirements which 
are applicable to one or more program regulations. The March 27, 1996 
final rule, however, did not consolidate the noncitizen requirements 
for HUD's Indian Housing programs.

B. This Interim Rule

    This interim rule revises HUD's regulations at 24 CFR part 5, 
subpart E by incorporating the recent amendments made to Section 214 by 
the Use of Assisted Housing by Aliens Act of 1996 (Title V, Subtitle E 
of the Illegal Immigration Reform and Responsibility Act of 1996, Pub. 
L. 104-208, 110 Stat. 3009, approved September 30, 1996) (the 
Immigration Reform Act). The Native American Housing Assistance and 
Self-Determination Act of 1996 (Pub. L. 104-330; 110 Stat. 4016; 
approved October 26, 1996) completely revises HUD's Indian Housing 
programs, this interim rule does not amend the noncitizen requirements 
for Indian Housing Authorities (IHAs) in Sec. 950.310. The transition 
notice and regulations promulgated under the Native American Housing 
Assistance and Self-Determination Act of 1996 will address the 
applicability of the Section 214 requirements as amended by the 
Immigration Reform Act.
    The most significant changes made to Section 214 by the Immigration 
Reform Act, and consequently to HUD's existing Section 214 regulations 
by this interim rule are as follows:
    1. The interim rule provides that responsible entities may not make 
assistance available to a family applying for assistance until at least 
the eligibility of one family member has been established, and 
assistance must be prorated based on the number of individuals in the 
family for whom eligibility has been affirmatively established. Related 
to this issue, the Immigration Reform Act also provides that pending 
such verification the Secretary may not delay, deny, reduce or 
terminate the eligibility of an individual for financial assistance on 
the basis of the immigration status of that individual. Although at 
first glance these two provisions appear to conflict, HUD believes they 
are complementary.
    HUD believes that the first provision places responsibility on the 
family to produce documentation of eligible immigration status. 
Accordingly, this interim rule provides that no family shall be 
provided assistance until the required documentation has been 
submitted. The second provision places responsibility on the INS and 
any other entity which must take certain action once the family has 
submitted the necessary documentation. Once the family has produced the 
necessary documents, it should not be penalized for delays on the part 
of those entities which must verify eligible immigration status.
    2. The interim rule requires that continued financial assistance 
provided to an eligible mixed family after November 29, 1996 be 
prorated based on the percentage of family members that are eligible 
for assistance. An eligible mixed family is a family containing members 
with eligible immigration status, as well as members without such 
status, and that meets the criteria for eligibility for continued 
assistance as set forth in Section 214.
    3. The interim rule requires that HUD suspend financial assistance 
to a family upon determining that the family has knowingly permitted an 
ineligible individual to reside on a permanent basis in the family's 
unit. The suspension shall be for a period of at least 24 months. This 
provision does not apply if the ineligible individual has already been 
considered in calculating any proration of assistance for the family.
    4. This interim rule allows responsible entities administering 
financial assistance under a Section 214 covered program to require 
that individuals who declare themselves to be U.S. citizens or 
nationals to verify the declaration through appropriate documentation 
(e.g., United States passport, resident alien card, registration card, 
social security card, or other appropriate documentation). Before this 
amendment, only individuals who are not U.S. citizens or nationals are 
required to present documentation of their eligible immigration status.
    5. The interim rule revises the maximum period for deferral of 
termination of assistance provided after November 29, 1996 from an 
aggregate of 3 years to an aggregate of 18 months. The 18-month maximum 
deferral period does not apply to refugees under section 207 of the 
Immigration and Nationality Act or to individuals seeking asylum

[[Page 60537]]

under section 208 of that Act. The maximum deferral period for 
deferrals granted prior to November 29, 1996 continues to be 3 years.
    6. The interim rule provides that an individual has a maximum 
period of 30-days, starting from the date of receipt of the notice of 
denial or termination of assistance, to request a fair hearing. HUD 
believes that due process requires that assistance already being 
provided to a tenant may not be delayed, denied, reduced or terminated 
until completion of the fair hearing.
    7. This interim rule, in accordance with Section 214 as amended, 
provides that a PHA may elect not to comply with the requirements of 24 
CFR part 5, subpart E. In complying with 24 CFR part 5, subpart E, a 
PHA may initiate procedures to affirmatively establish or verify the 
eligibility of an individual or family at any time in which the PHA 
determines that such eligibility is in question, regardless of whether 
or not that individual or family is at or near the top of the waiting 
list of the PHA. The PHA may also affirmatively establish or verify the 
eligibility of a family member in accordance with the procedures set 
forth in section 274A(b)(1) of the Immigration and Nationality Act (8 
U.S.C. 1324A(b)(1)), and shall have access to any relevant information 
contained in the INS SAVE system (or any successor thereto) that 
relates to any family member applying for financial assistance.
    The change described in paragraph #7 is based on the language of 
new subsection 214(h)(2), which was added by Section 575 of the 
Immigration Reform Act. Subsection 214(h)(2) provides that ``[a] Public 
Housing Agency * * * may elect not to comply with this section.'' The 
use of the word ``section'' (as opposed to ``subsection'') in this 
provision, in a strict statutory construction, refers to Section 214 in 
its entirety.
    The Immigration Reform Act restricts the provision of assistance to 
a family until at least the eligibility of one family member has been 
verified. This interim rule, however, provides that HUD shall not be 
responsible for verifying compliance with the requirements of Section 
214 if a PHA elects to ``opt-out'' of 24 CFR part 5, subpart E. HUD 
would only be able to verify the eligible immigration status of family 
members applying for assistance with the aid of the PHAs. Since PHA 
assistance would be required, the imposition of such verification 
responsibility upon HUD would in effect negate the right of a PHA to 
``opt-out'' of Section 214.

C. Changes Made to Section 214 by the Welfare Reform Act

    The Personal Responsibility and Work Opportunity Reconciliation Act 
of 1996 (Pub.L. 104-193; 110 Stat. 2105; approved August 22, 1996) 
(Welfare Reform Act) expanded the scope of Section 214. Specifically, 
Section 441 of the Welfare Act makes assistance provided under the 
National Homeownership Trust (42 U.S.C. 12851-12859) subject to the 
noncitizen requirements of Section 214. Pursuant to 42 U.S.C. 12859, 
the National Homeownership Trust was terminated on September 30, 1994. 
Accordingly, this interim rule does not revise 24 CFR part 5, subpart E 
to incorporate the amendment made by the Welfare Reform Act.
    Section 441 of the Welfare Reform Act also made the restrictions of 
Section 214 applicable to the following programs administered by the 
Secretary of Agriculture: direct loan program under section 502 of the 
Housing Act of 1949 or section 502(c)(5)(D), 504, 521(a)(2)(A), or 542 
of the Housing Act of 1949, subtitle A of title III of the Cranston-
Gonzalez National Affordable Housing Act. Since these programs are 
administered by the Secretary of Agriculture, HUD is not amending its 
regulations to reflect the expanded scope of the Section 214 
restrictions.
    In addition to the changes discussed above, the Welfare Reform Act 
made other amendments concerning immigration. This interim rule does 
not implement these provisions of the Welfare Reform Act. This interim 
rule only amends 24 CFR part 5, subpart E to incorporate the changes 
made by the Immigration Reform Act. HUD and other responsible agencies 
are developing regulations to implement the changes made by the Welfare 
Reform Act. Responsible entities should not implement the Welfare 
Reform Act provisions until the issuance of these implementing 
regulations.

D. Nondiscrimination in the Implementation of Section 214

    HUD reiterates the statement made in the March 20, 1995 final rule 
that all regulatory procedures in implementation of Section 214 must be 
administered in the uniform manner prescribed without regard to race, 
national origin, or personal characteristics (e.g., accent, language 
spoken, or familial association with a noncitizen).

II. Justification for Interim Rulemaking

    It is HUD's policy to publish rules for public comment before their 
issuance for effect, in accordance with its own regulations on 
rulemaking found at 24 CFR part 10. Part 10 provides that prior public 
procedure may be omitted if ``a statute expressly so authorizes'' (24 
CFR 10.1). Section 577 of the Immigration Reform Act requires that the 
Secretary of HUD, within 60 days of the Act's enactment, issue an 
interim rule implementing the amendments made to Section 214. Further, 
section 577 provides that the interim rule ``shall take effect upon 
issuance.'' This interim rule implements the rulemaking requirement 
contained in Section 577 of the Immigration Reform Act. Although HUD is 
statutorily mandated to issue this interim rule for immediate effect, 
it welcomes public comment. All comments will be considered in the 
development of the final rule.
    On October 30, 1996, the Department held a meeting at HUD 
Headquarters on the subject of the Immigration Reform Act. HUD invited 
to this meeting representatives of civil rights groups, public housing 
agencies, private housing providers, and legal services groups to 
present their views on the effect of the amendments to Section 214 made 
by the Immigration Reform Act. The comments and concerns about the 
Immigration Reform Act were taken into account during the development 
of this interim rule. Organizations that participated in this meeting 
included, among others, the Public Housing Authorities Directors 
Association; the National Housing Law Project; the National Puerto 
Rican Coalition; the National Association of Housing and Redevelopment 
Authorities; the National Council of La Raza; and the Council of Large 
Public Housing Authorities.
III. Findings and Certifications
Executive Order 12866, Regulatory Planning and Review
    The Office of Management and Budget (OMB) reviewed this interim 
rule under Executive Order 12866, Regulatory Planning and Review. OMB 
determined that this interim 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 to the interim rule subsequent to its submission to 
OMB are identified in the docket file, which is available for public 
inspection in the office of the Department's Rules Docket Clerk, Room 
10276, 451 Seventh Street, SW, Washington, DC 20410-0500.
Unfunded Mandates Reform Act

    The Secretary has reviewed this interim rule before publication and 
by approving it certifies, in accordance

[[Page 60538]]

with the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532), that 
this interim rule does not impose a Federal mandate that will result in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)) has reviewed and approved this interim rule, and in so 
doing certifies that this interim rule will not have a significant 
economic impact on a substantial number of small entities. As explained 
in the preamble to the March 20, 1995 final rule, the implementation of 
HUD's noncitizen requirements have only a minimal impact on small 
housing project owners, small mortgagees, and small housing agencies. 
The amendments made by this interim rule do not alter that 
determination. This interim rule does not require the creation of new 
procedures or impose significant additional costs on responsible 
entities. Rather, the requirements of the interim rule can be satisfied 
through the use of existing procedures. For example, the interim rule 
prohibits responsible entities from making assistance available to a 
noncitizen until the necessary documentation establishing eligible 
immigration status is verified. This requirement can be fulfilled by 
utilizing the existing verification procedures. Likewise, current 
methods may be used to prorate the assistance provided to an eligible 
mixed family receiving continued assistance.

Environmental Impact

    A Finding of No Significant Impact with respect to the environment 
has been made in accordance with HUD regulations at 24 CFR part 50 that 
implement section 102(2)(C) of the National Environmental Policy Act of 
1969 (42 U.S.C. 4332). The Finding of No Significant Impact is 
available for public inspection during business hours in the Office of 
the Rules Docket Clerk, Room 10276, Department of Housing and Urban 
Development, 451 Seventh Street, SW, Washington, DC 20410-0500.

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 interim rule have no federalism implications, and 
that the policies are not subject to review under the Order. This 
interim rule addresses immigration, a topic exclusively the province of 
the Federal government, and the effect is the direct result of the 
status that imposes the restriction against assistance to noncitizens, 
rather than a result of HUD's exercise of discretion in promulgating a 
rule to implement the statute.

Executive Order 12606, The Family

    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has determined that this interim rule does not 
have the potential for significant impact on family formation, 
maintenance, and general well-being, and, thus, is not subject to 
review under the Order. The only families upon whom Section 214 and 
HUD's implementing regulations have an impact are those containing 
individuals with ineligible immigration status. Even for these 
families, however, Section 214 and HUD's regulations strive to maintain 
the unity of the family under the provisions concerning preservation 
assistance to mixed families which provide for continued assistance for 
certain categories of mixed families, and deferral of termination of 
assistance and prorated assistance for other mixed families.

List of Subjects in 24 CFR Part 5

    Administrative practice and procedure, Aged, Claims, Drug abuse, 
Drug traffic control, Grant programs--housing and community 
development, Grant programs--Indians, Grant programs--low and moderate 
income housing, Indians, 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.

    Accordingly, 24 CFR part 5 is amended as follows:

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

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

    Authority: 42 U.S.C. 3535(d), unless otherwise noted.

Subpart E--Restrictions on Assistance to Noncitizens

    2. The authority citation for subpart E continues to read as 
follows:

    Authority: 42 U.S.C. 1436a and 3535(d).

    3. A new Sec. 5.501 is added to read as follows:


Sec. 5.501  PHA election whether to comply with this subpart.

    (a) PHA opt-out. A PHA that is a responsible entity under this 
subpart may elect not to comply with (``opt-out'' of) the requirements 
of this subpart.
    (b) PHA compliance. If the PHA elects to comply with this subpart, 
the PHA:
    (1) May initiate procedures to affirmatively establish or verify 
the eligibility of a family under this section at any time at which the 
PHA determines that such eligibility is in question, without regard to 
position of the family member's family on the waiting list of the PHA;
    (2) May affirmatively establish or verify the eligibility of a 
family member in accordance with the procedures set forth in section 
274A(b)(1) of the Immigration and Nationality Act; and
    (3) Shall have access to any relevant information contained in the 
INS SAVE system (or any successor thereto) that relates to any family 
member applying for financial assistance.
    (c) HUD not responsible due to PHA opt-out. HUD shall not bear any 
responsibility in connection with compliance with the requirements of 
Section 214 if a PHA elects not to comply with this subpart under 
paragraph (a) of this section.
    4. Section 5.508 is amended by revising paragraphs (b)(1), (b)(2), 
(h)(2) and (h)(3) introductory text to read as follows:


Sec. 5.508  Submission of evidence of citizenship or eligible 
immigration status.

* * * * *
    (b) * * *
    (1) For citizens, the evidence consists of a signed declaration of 
U.S. citizenship. The responsible entity may request verification of 
the declaration by requiring presentation of a United States passport, 
resident alien card, registration card, social security card, or other 
appropriate documentation.
    (2) For noncitizens who are 62 years of age or older or who will be 
62 years of age or older and receiving assistance under a Section 214 
covered program on September 30, 1996 or applying for assistance on or 
after that date, the evidence consists of:
    (i) A signed declaration of eligible immigration status; and
    (ii) Proof of age document.
* * * * *
    (h) * * *
    (2) Thirty-day extension period. Any extension of time, if granted, 
shall not exceed thirty (30) days. The additional time provided should 
be sufficient to

[[Page 60539]]

allow the individual the time to obtain the evidence needed. The 
responsible entity's determination of the length of the extension 
needed shall be based on the circumstances of the individual case.
    (3) Grant or denial of extension to be in writing. The responsible 
entity's decision to grant or deny an extension as provided in 
paragraph (h)(1) of this section shall be issued to the family by 
written notice. If the extension is granted, the notice shall specify 
the extension period granted (which shall not exceed thirty (30) days). 
If the extension is denied, the notice shall explain the reasons for 
denial of the extension.
* * * * *
    5. Section 5.510 is amended by revising paragraph (b) to read as 
follows:


Sec. 5.510  Documents of eligible immigration status.

* * * * *
    (b) Acceptable evidence of eligible immigration status. Acceptable 
evidence of eligible immigration status shall be the original of a 
document designated by INS as acceptable evidence of immigration status 
in one of the six categories mentioned in Sec. 5.506(a) for the 
specific immigration status claimed by the individual.
    6. Section 5.512 is amended by revising paragraph (a) to read as 
follows:


Sec. 5.512  Verification of eligible immigration status.

    (a) General. Except as described in Secs. 5.501 and 5.514, no 
individual or family applying for assistance may receive such 
assistance prior to the verification of the eligibility of at least the 
individual or one family member. Verification of eligibility consistent 
with Sec. 5.514 occurs when the individual or family members have 
submitted documentation to the responsible entity in accordance with 
Sec. 5.508.
* * * * *
    7. Section 5.514 is amended by:
    a. Revising paragraph (b);
    b. Revising paragraph (c)(1);
    c. Revising paragraph (e)(1);
    d. Removing paragraph (f)(2);
    e. Redesignating paragraphs (f)(3) and (f)(4) as paragraphs (f)(2) 
and (f)(3) respectively; and
    f. Revising paragraph (f)(1), to read as follows:


Sec. 5.514  Delay, denial, reduction or termination of assistance.

* * * * *
    (b) Restrictions on delay, denial, reduction or termination of 
assistance. (1) Restrictions on reduction, denial or termination of 
assistance for applicants and tenants. Assistance to an applicant or 
tenant shall not be delayed, denied, reduced, or terminated, on the 
basis of ineligible immigration status of a family member if:
    (i) The primary and secondary verification of any immigration 
documents that were timely submitted has not been completed;
    (ii) The family member for whom required evidence has not been 
submitted has moved from the assisted dwelling unit;
    (iii) The family member who is determined not to be in an eligible 
immigration status following INS verification has moved from the 
assisted dwelling unit;
    (iv) The INS appeals process under Sec. 5.514(e) has not been 
concluded;
    (v) Assistance is prorated in accordance with Sec. 5.520; or
    (vi) Assistance for a mixed family is continued in accordance with 
Secs. 5.516 and 5.518; or
    (vii) Deferral of termination of assistance is granted in 
accordance with Secs. 5.516 and 5.518.
    (2) Restrictions on delay, denial, reduction or termination of 
assistance pending fair hearing for tenants. In addition to the factors 
listed in paragraph (b)(1) of this section, assistance to a tenant 
cannot be delayed, denied, reduced or terminated until the completion 
of the informal hearing described in paragraph (f) of this section.
    (c) Events causing denial or termination of assistance. (1) 
General. Assistance to an applicant shall be denied, and a tenant's 
assistance shall be terminated, in accordance with the procedures of 
this section, upon the occurrence of any of the following events:
    (i) Evidence of citizenship (i.e., the declaration) and eligible 
immigration status is not submitted by the date specified in 
Sec. 5.508(g) or by the expiration of any extension granted in 
accordance with Sec. 5.508(h);
    (ii) Evidence of citizenship and eligible immigration status is 
timely submitted, but INS primary and secondary verification does not 
verify eligible immigration status of a family member; and
    (A) The family does not pursue INS appeal or informal hearing 
rights as provided in this section; or
    (B) INS appeal and informal hearing rights are pursued, but the 
final appeal or hearing decisions are decided against the family 
member; or
    (iii) The responsible entity determines that a family member has 
knowingly permitted another individual who is not eligible for 
assistance to reside (on a permanent basis) in the public or assisted 
housing unit of the family member. Such termination shall be for a 
period of not less than 24 months. This provision does not apply to a 
family if the ineligibility of the ineligible individual was considered 
in calculating any proration of assistance provided for the family.
* * * * *
    (e) Appeal to the INS. (1) Submission of request for appeal. Upon 
receipt of notification by the responsible entity that INS secondary 
verification failed to confirm eligible immigration status, the 
responsible entity shall notify the family of the results of the INS 
verification, and the family shall have 30 days from the date of the 
responsible entity's notification, to request an appeal of the INS 
results. The request for appeal shall be made by the family 
communicating that request in writing directly to the INS. The family 
must provide the responsible entity with a copy of the written request 
for appeal and proof of mailing.
* * * * *
    (f) Informal hearing. (1) When request for hearing is to be made. 
After notification of the INS decision on appeal, or in lieu of request 
of appeal to the INS, the family may request that the responsible 
entity provide a hearing. This request must be made either within 30 
days of receipt of the notice described in paragraph (d) of this 
section, or within 30 days of receipt of the INS appeal decision issued 
in accordance with paragraph (e) of this section.
* * * * *
    8. Section 5.516 is amended by revising the introductory text of 
paragraph (c) to read as follows:


Sec. 5.516  Availability of preservation assistance to mixed families 
and other families.

* * * * *
    (c) Assistance available to other families in occupancy. Temporary 
deferral of termination of assistance may be available to families 
receiving assistance under a Section 214 covered program on June 19, 
1995, and who have no members with eligible immigration status, as set 
forth in paragraphs (c) (1) and (2) of this section.
* * * * *
    9. Section 5.518 is amended by revising paragraphs (a), (b)(3) and 
(b)(5) to read as follows:


Sec. 5.518  Types of preservation assistance available to mixed 
families and other families.

    (a) Continued assistance. (1) General. A mixed family may receive 
continued

[[Page 60540]]

housing assistance if all of the following conditions are met (a mixed 
family assisted under a Housing covered program must be provided 
continued assistance if the family meets the following conditions):
    (i) The family was receiving assistance under a Section 214 covered 
program on June 19, 1995;
    (ii) The family's head of household or spouse has eligible 
immigration status as described in Sec. 5.506; and
    (iii) The family does not include any person (who does not have 
eligible immigration status) other than the head of household, any 
spouse of the head of household, any parents of the head of household, 
any parents of the spouse, or any children of the head of household or 
spouse.
    (2) Proration of continued assistance. A family entitled to 
continued assistance before November 29, 1996 is entitled to continued 
assistance as described in paragraph (a) of this section. A family 
entitled to continued assistance after November 29, 1996 shall receive 
prorated assistance as described in Sec. 5.520.
    (b) * * *
    (3) Time limit on deferral period. If temporary deferral of 
termination of assistance is granted, the deferral period shall be for 
an initial period not to exceed six months. The initial period may be 
renewed for additional periods of six months, but the aggregate 
deferral period for deferrals provided after November 29, 1996 shall 
not exceed a period of eighteen months. The aggregate deferral period 
for deferrals granted prior to November 29, 1996 shall not exceed 3 
years. These time periods do not apply to a family which includes a 
refugee under section 207 of the Immigration and Nationality Act or an 
individual seeking asylum under section 208 of that Act.
* * * * *
    (5) Determination of availability of affordable housing at end of 
each deferral period. (i) Before the end of each deferral period, the 
responsible entity must satisfy the applicable requirements of either 
paragraph (b)(5)(i) (A) or (B) of this section. Specifically, the 
responsible entity must:
    (A) For Housing covered programs: Make a determination that one of 
the two conditions specified in paragraph (b)(2) of this section 
continues to be met (note: affordable housing will be determined to be 
available if the vacancy rate is five percent or greater), the owner's 
knowledge and the tenant's evidence indicate that other affordable 
housing is available; or
    (B) For Section 8 or Public Housing covered programs: Make a 
determination of the availability of affordable housing of appropriate 
size based on evidence of conditions which when taken together will 
demonstrate an inadequate supply of affordable housing for the area in 
which the project is located, the consolidated plan (if applicable, as 
described in 24 CFR part 91), the responsible entity's own knowledge of 
the availability of affordable housing, and on evidence of the tenant 
family's efforts to locate such housing.
    (ii) The responsible entity must also:
    (A) Notify the tenant family in writing, at least 60 days in 
advance of the expiration of the deferral period, that termination will 
be deferred again (provided that the granting of another deferral will 
not result in aggregate deferral periods that exceeds the maximum 
deferral period). This time period does not apply to a family which 
includes a refugee under section 207 of the Immigration and Nationality 
Act or an individual seeking asylum under section 208 of that Act, and 
a determination was made that other affordable housing is not 
available; or
    (B) Notify the tenant family in writing, at least 60 days in 
advance of the expiration of the deferral period, that termination of 
financial assistance will not be deferred because either granting 
another deferral will result in aggregate deferral periods that exceed 
the maximum deferral period (unless the family includes a refugee under 
section 207 of the Immigration and Nationality Act or an individual 
seeking asylum under section 208 of that Act), or a determination has 
been made that other affordable housing is available.
* * * * *
    10. Section 5.526 is revised to read as follows:


Sec. 5.526  Protection from liability for responsible entities and 
State and local government agencies and officials.

    (a) Protection from liability for responsible entities. Responsible 
entities are protected from liability as set forth in Section 214(e) 
(42 U.S.C 1436a(e)).
    (b) Protection from liability for State and local government 
agencies and officials. State and local government agencies and 
officials shall not be liable for the design or implementation of the 
verification system described in Sec. 5.512, as long as the 
implementation by the State and local government agency or official is 
in accordance with prescribed HUD rules and requirements.

    Date: November 22, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-30498 Filed 11-27-96; 8:45 am]
BILLING CODE 4210-32-P