[Federal Register Volume 66, Number 101 (Thursday, May 24, 2001)]
[Rules and Regulations]
[Pages 28776-28806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12840]
[[Page 28775]]
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Part II
Department of Housing and Urban Development
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24 CFR Parts 5 et al.
Screening and Eviction for Drug Abuse and Other Criminal Activity;
Final Rule
Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules
and Regulations
[[Page 28776]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 200, 247, 880, 882, 884, 891, 960, 966, and 982
[Docket No. FR-4495-F-02]
RIN 2501-AC63
Screening and Eviction for Drug Abuse and Other Criminal Activity
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule amends the regulations for the public housing
and Section 8 assisted housing programs, and for other HUD assisted
housing programs, such as the Section 221(d)(3) below market interest
rate (BMIR) program, Section 202 program for the elderly, and Section
811 program for persons with disabilities, and Section 236 interest
reduction program. All of these programs were affected by 1998
amendments to the statute authorizing the public housing and Section 8
programs. These amendments give Public Housing Agencies (PHAs) and
assisted housing owners the tools for adopting and implementing fair,
effective, and comprehensive policies for screening out programs
applicants who engage in illegal drug use or other criminal activity
and for evicting or terminating assistance of persons who engage in
such activity.
DATES: Effective Date: June 25, 2001.
FOR FURTHER INFORMATION CONTACT: For tenant-based Section 8 and public
housing--Patricia Arnaudo, Senior Program Manager, Office of Public and
Assisted Housing Delivery, Department of Housing and Urban Development,
451 Seventh Street, SW., Room 4224, Washington DC, 20410; telephone
(202) 708-0744 or the Public and Indian Housing Resource Center at 1-
800-955-2232. Ms. Arnaudo also may be reached via the Internet at
hud.gov">Patricia_S._Arnaudo@hud.gov.
For the Section 8 project-based programs--Willie Spearmon,
Director, Office of Housing Assistance and Grants Management, Office of
Housing, Department of Housing and Urban Development, Room 4220, 451
Seventh Street, SW., Washington, DC 20410; telephone (202) 708-3000.
Mr. Spearmon also may be reached via the Internet at
Willie_Spearmon&hud.gov.
Only the Public and Indian Housing Resource Center number is toll-
free. Persons with hearing or speech impairments may access the above
telephone numbers via TTY by calling the toll-free Federal Information
Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
HUD published a proposed rule to implement the applicant screening
and tenant eviction procedures to make HUD-assisted housing safer
places to live on July 23, 1999 (64 FR 40262), which superseded earlier
proposed rules for the Section 8 and public housing programs covering
this subject. Crime prevention in federally assisted housing will be
advanced by the authority to screen out those who engage in illegal
drug use or other criminal activity, and both prevention and
enforcement will be advanced by the authority to evict and terminate
assistance for persons who participate in criminal activity.
The changes proposed in that rule derived from several sources.
(See the chart published in the July 23, 1999, proposed rule at 64 FR
40264-40265 for more detail.) Section 9 of the Housing Opportunity
Program Extension Act (Pub. L. 104-120, 110 Stat. 834-846, approved
March 28, 1996)(``the Extension Act'') amended sections 6 and 16 of the
United Stated Housing Act of 1937 (42 U.S.C. 1437a, et seq.) (``the
1937 Act''). Sections 428, 506, 545, and 575-579 of the HUD
Appropriation Act for Fiscal Year 1999 (Pub. L. 105-276, approved Oct.
21, 1998) amended sections 3, 6, 8, and 16 of the 1937 Act and created
other statutory authority concerning crime and security provisions in
most federally assisted housing (42 U.S.C. 13661-13664). Title V of the
HUD Appropriation Act for Fiscal Year 1999 (Pub. L. 105-276, approved
October 21, 1998) was designated the Quality Housing and Work
Responsibility Act of 1998 and is referenced in this rule as ``the
QHWRA'' or ``the 1998 Act.'' Section 903 of the Personal Responsibility
and Work Opportunity Act of 1996 (Pub. L. 104-193, approved August 22,
1996, 110 Stat. 2105, 2348) amended sections 6(l) and 8(d)(1) of the
1937 Act concerning terminating tenancy for fleeing to avoid
prosecution, custody or confinement after commission of a felony, or
for violation of probation or parole.
Although owners and PHAs have been free to deny admission to
applicants for assisted housing on the basis of criminal activity,
these new statutory provisions mandate denial of admission for
specified criminal activity. In implementing the new mandatory
provisions, HUD does not impair existing authority of owners and PHAs
to deny admission for criminal activity other than that specified in
this rule or which has taken place at times other than those specified.
In addition, although this rule provides a mechanism for obtaining
access to criminal records, HUD recognizes that many PHAs and owners
may now use other means of obtaining criminal records and may continue
to use these other means of obtaining that information. The portion of
this rule that addresses access to criminal records, subpart J of part
5, does not affect those other means. However, HUD cautions PHAs and
owners to handle any information obtained about criminal records in
accordance with applicable State and Federal privacy laws and with the
provisions of the consent forms signed by applicants.
The preamble to the July 23, 1999, proposed rule provided
additional information about the proposed implementation of the
Extension Act and the 1998 Act.
II. Significant Differences Between This Final Rule and the
Proposed Rule
This final rule takes into consideration the public comments
received on the proposed rule and attempts to simplify the rule where
possible. The more significant changes made to the July 23, 1999
proposed rule by this final rule are described below.
1. Revised and reorganized regulatory text. HUD has revised and
reorganized the majority of the proposed regulatory text. These changes
are not substantive, but are designed to streamline the contents of the
proposed rule and make the new requirements easier to understand. For
example, the final rule uses a more reader-friendly question and answer
format. The more significant of these clarifying and organizational
changes are described in greater detail in this section.
2. Cross-reference to generally applicable definitions
(Sec. 5.100). The final rule eliminates unnecessary redundancy by
relocating the definitions of commonly used terms to subpart A of 24
CFR part 5 (see Sec. 5.100 of this final rule). The program regulations
using the defined terms have been revised to simply cross-reference to
24 CFR part 5, rather than repeating the generally applicable
definitions.
3. Authority to screen applicants and evict tenants (24 CFR part 5,
subpart I). This final rule reorganizes and clarifies the provisions of
the proposed rule concerning the authority of housing providers to
screen and evict tenants. Some of the 1998 Act provisions require
certain actions, while other provisions authorize various actions. In
the proposed rule, this distinction was not always entirely clear. HUD
has made several revisions to proposed 24 CFR part 5, subpart I to
clarify these
[[Page 28777]]
differences. For example, the final rule adds a new Sec. 5.851, which
discusses these distinctions.
The final rule also locates the specifically authorized actions in
separate sections from the mandatory actions. This reorganization
reveals the statutory distinction between treatment of illegal drug use
and other drug-related criminal activity. Current illegal use of a drug
is the subject of a mandatory prohibition on admission. Past eviction
for drug-related criminal activity and conviction for methamphetamine
production are also the subject of statutory prohibitions on admission.
Certain other drug-related criminal activity is required by statute to
be included in the lease as a basis for eviction in the Section 8 and
public housing programs, and this policy has been applied to other
federally assisted housing programs as well.
4. Prohibition on admission of sex offenders (Sec. 5.856). Because
the prohibition against admitting persons subject to a lifetime
registration requirement under a State sex offender registration
program is mandatory, but not captured under the heading of the other
subjects of mandatory screening, that provision is now contained in its
own section of part 5 (see new Sec. 5.856). Similarly, the sex offender
provision is positioned in the other program regulations to emphasize
the mandatory nature of this provision as a screening element.
5. Reorganization of 24 CFR part 5, subpart J. Subpart J of the
final rule is reorganized slightly, to place all of the applicability
and purpose discussions in one section (the new Sec. 5.901), and all
the definitions in one section (the new Sec. 5.902). The remaining two
sections on general criminal offender records and sexual offender
registration are renumbered, as a result.
6. Opportunities to dispute criminal record information
(Sec. 5.903(f)). This final rule adds a new Sec. 5.903(f), which
requires the PHA to provide the subject of an accessed criminal record
and the applicant or tenant a copy of the record and an opportunity to
dispute the accuracy and relevance of the information. This opportunity
must be provided before the denial of admission, eviction, or lease
enforcement action on the basis of such information.
7. Penalties for improper release of information (Sec. 5.903(h)).
This final rule adds a new Sec. 5.903(h), which describes the possible
criminal penalties and civil liability for unauthorized disclosure of
criminal records and information.
8. Lease and termination of tenancy under the Section 8 Moderate
Rehabilitation Program (Sec. 882.511). This final rule amends 24 CFR
part 882 (entitled ``Section 8 Moderate Rehabilitation Program'') to
clarify drug-related lease requirements under the program regulations.
Specifically, the final rule adds a new Sec. 882.511(a)(2), which
requires the lease to provide that certain drug-related criminal
activity is grounds for termination of the tenancy. In addition, the
lease must provide that the owner may terminate the tenancy when the
owner determines that a pattern of illegal drug use interferes with the
health, safety, or right to peaceful enjoyment of the premises by other
residents.
9. Removal of duplicative provision (Sec. 882.514(g)). The final
rule removes one paragraph from the Section 8 Moderate Rehabilitation
regulation dealing with family obligations (Sec. 882.514(g)), since its
coverage of denial of admission and termination of tenancy is now
covered in Secs. 882.518(c) and (d).
10. Admission and occupancy changes (24 CFR part 960). On March 29,
2000 (65 FR 16692), HUD published a final rule implementing the changes
to the admissions and occupancy requirements for the public housing and
Section 8 assisted housing programs made by the QHWRA. Among other
amendments, the Admissions and Occupancy final rule made several
changes to 24 CFR part 960. The part 960 regulations had earlier been
proposed to be amended by the July 23, 1999 proposed rule on screening
and eviction for drug abuse and other criminal activity. Accordingly,
this final rule updates or revises the proposed revisions to part 960
to reflect publication of the final rule on admissions and occupancy.
11. Reference to PHAS screening and eviction procedures (24 CFR
parts 960 and 966). The final rule revises the regulations governing
public housing admissions and occupancy (24 CFR part 960) and lease and
grievance requirements (24 CFR part 966) to reference criminal
screening and eviction procedures under the Public Housing Assessment
System (PHAS). Under the PHAS, PHAs that have adopted policies,
implemented procedures and can document that they successfully screen
out and deny admission to certain applicants with unfavorable criminal
histories receive points (see 24 CFR 902.43(a)(5)).
12. Post office notification requirements (Sec. 966.4(l)(5)). To
correct the proposed rule's inadvertent removal of a provision from the
public housing eviction provisions, the final rule restores the current
rule's requirement in Sec. 966.4(l)(5) that a PHA notify the local post
office when the PHA evicts an individual or family for criminal
activity. This provision implements a statutory requirement (42 U.S.C.
1437d(n)) that is intended to prevent the return to the development of
the evicted person to obtain mail.
13. Termination of tenancy under Housing Choice Voucher program (24
CFR part 982). The rule for the Section 8 tenant-based certificate and
voucher programs on termination of tenancy for drug-related criminal
activity is based on section 8(d)(1)(B)(iii) and section 8(o)(7)(D) of
the 1937 Act (42 U.S.C. 1437f(d)(1)(B)(iii) and 1437f(o)(7)(D)), as
well as on section 577 of the 1998 Act. The final rule changes the
proposed revision of Sec. 982.310(c) to remove two non-exclusive
examples of when the owner may terminate tenancy for drug-related
criminal activity.
14. Screening and Eviction by Responsible Entity. Public commenters
had expressed concern that in all programs the responsible entity be
encouraged to consider all the circumstances of the family before
taking action based on proscribed activity by one member of the
household. Public commenters had objected to the provision of the
proposed rule that purported to mandate a period of ineligibility for
prior eviction for drug-related criminal activity that was longer than
three years. Public commenters had expressed the view that the
consideration of rehabilitation was not prominent enough in the rule.
All of these elements, plus specific requirements, and adherence to the
entity's standards and policies, are included in the provisions
regarding discretion. (This provision is discussed at greater length in
response to the public comments.)
15. Clarification of eviction for drug use by guests and other
persons. Various sections of the proposed rule allow PHAs the option of
evicting the tenant when a ``covered person'' engages in improper
activity ``on or off'' the premises (in the case of public housing) and
``on or near'' the premises (in the case of Section 8 programs). The
concept of ``covered person'' is an umbrella term including (in
addition to the tenant) guests, members of the tenant's household, and
``other persons under the tenant's control.'' HUD has defined ``guest''
in this context to mean anyone staying in the unit with the permission
of the tenant or another household member with the authority to give
such permission. In order to distinguish the concept of ``other
person'' from ``guest,'' HUD is defining ``other person under the
tenant's control'' to mean a short-term invitee
[[Page 28778]]
who is not ``staying'' in the unit. The rule specifies that such a
person is only under the tenant's control during the period of the
invitation, and the person is on the premises because of that
invitation. Hence, in Secs. 5.858, 882.511, 882.518(c)(1),
966.4(f)(12), 966.4(l)(5), and 982.310(c), the final rule replaces the
proposed term ``covered person'' with more specific language to clarify
this distinction.
16. More precise cross-references. Sections 247.3, 880.607, and
884.216, describing when landlords in the assisted housing programs
governed by those sections may terminate tenancy for criminal activity
or alcohol abuse, provide cross-references to part 5, subparts I and J
generally. The final rule cross-references directly to the most
applicable sections of part 5 to avoid any potential for confusion.
III. Responses to Public Comments
The public comment period on the proposed rule closed on September
21, 1999. During this period, HUD received 29 public comments. The
commenters were comprised of 17 public housing agencies (PHAs) and
their representatives, including four State Housing Finance Agencies
and their representatives, three legal aid organizations, three
managers of Section 8 housing, four resident groups, one Federal
government agency, and one legal organization representing PHAs. The
following discussion of comments (and HUD's responses to the comments)
is organized according to the regulatory section to which the comment
applies, in sequential order. The corresponding sections for particular
programs are also listed in the headings.
A. General Comments Not Regarding a Particular Regulatory Section
Comment. Residents of an assisted development that had been for
elderly persons only but had added other residents recently expressed
their general support for the rule, hoping that the rule will help rid
their development of problem tenants engaged in drug-related activity.
An owner of a Single Room Occupancy project who participates in HUD's
Shelter Plus Care program praised the rule for giving the owner the
ability to reject and evict tenants who engage in illegal activities
specifically related to drug and alcohol use, noting that the rule will
improve the quality of life for its 195 residents. This owner also
praised the new authority for a PHA to check criminal records, as a way
to restrict tenancy to suitable applicants.
Response. With the new statutory authority owners and PHAs should
have the tools to deny or terminate assistance to families whose
criminal actions interfere with the safety and security of the other
residents.
Comment. A legal organization representing PHA interests commended
the Department for an excellent overall effort in its regulatory
implementation of the 1998 Act. The organization commented that HUD had
shown a commendable reluctance to further complicate an already complex
statutory scheme with regulations that are more detailed than
necessary.
Response. In that vein, HUD declines to elaborate upon some of the
statutory terms that commenters have urged HUD to define. In some
cases, the terms may already have been the subject of judicial
clarification. HUD is attempting to limit its role to amplifying the
statute only where necessary.
B. Definitions--Sec. 5.100
Comment. HUD's adoption of a revised definition of ``violent
criminal activity'' was praised by a legal aid organization, but the
organization recommended the ``nontrivial bodily injury or property
damage'' be changed to ``serious bodily injury or property damage.'' An
organization providing legal support to PHAs and their counsel also
expressed support of this revised definition, particularly with respect
to its inclusion of threatening behaviors.
Response. HUD has adopted this change. On further consideration of
the issue, HUD has decided that the word ``serious'' is a more common
legal term and therefore preferable. HUD intends no change in meaning.
C. Prohibiting Admission of Drug Criminals--Secs. 5.854, 960.204,
982.553
Comment. Sections 5.854 and 960.204 (Secs. 5.853, 960.203 at the
proposed rule stage), and 982.553(a) of the proposed rule provide that
the responsible entity must adopt standards that prohibit admission of
applicants:
If the entity determines that a household member is
engaged in or has engaged in drug-related criminal behavior; or
If the entity determines it has reasonable cause to
believe that illegal drug use by a household member may threaten
peaceful enjoyment by other residents.
Comments asserted that most of the provisions concerning whether a
family is eligible for admission or continued occupancy use a phrase
placing the responsibility on the owner or PHA determination of a
condition, not on the objective existence of the condition.
Representatives of housing owners and residents asked what is meant by
reasonable cause for an owner to believe that a condition exists (e.g.,
that there is illegal use of a drug by a household member that is a
threat to others, as described in Sec. 5.854(a)(2)). They noted a
contrast with other provisions that seem to be based on the existence
of the condition, such as whether a household member ``has been evicted
from federally assisted housing for drug-related criminal activity.''
(Sec. 5.853 proposed; Sec. 5.854 final) They recommended that the rule
should either (1) make the objective existence of the condition rather
than a PHA or owner determination the critical factor resulting in
ineligibility or termination of assistance; or (2) state the process
and standards to be used by the PHA or owner in making its
determination.
Response. Section 576 of the 1998 Act refers to the PHA or owner's
determination with respect to drug use, criminal activity, or a pattern
of activity that would have potential negative impact on other
residents. In these provisions, the Congress and the Department
recognize that the entities that are responsible for direct
administration of the assisted housing programs should have latitude
for practical and reasonable day-to-day judgments whether household
members have committed criminal activity or other activity that is
grounds for denial or termination of assistance. Thus, the final rule
simply reflects the statutory language. HUD notes, however, that
nothing in the language of the rule on the question of owner
determinations would change any ability to challenge in court the
responsible entity's action or change any applicable court standard of
review of such action.
Comment. A legal aid organization criticized HUD's implementation
of restrictions against persons who have engaged in illegal drug use in
Sec. 5.854 (Sec. 5.853 of the proposed rule). The commenter argued
that, based on section 576(b) of the 1998 Act, the rule should permit
such persons to be excluded only if there is a link with a threat to
health, safety or peaceful enjoyment of others.
Response. HUD disagrees that this link must be present in every
case related to illegal drug use or drug-related criminal activity.
Section 576(b)(1)(A) of the 1998 Act provides independent authority to
bar admission of persons currently engaged in illegal drug use, without
reference to any effect on health, safety, or right to peaceful
enjoyment of the premises. Although section 576(b) links a pattern of
illegal drug use to interference with the rights of others, the
language of section 576(c) gives broad authority to owners to
[[Page 28779]]
screen out applicants involved in drug-related activity--which includes
illegal drug use, as well as commercial drug crime--without any
necessary finding of current interference with the rights of others.
The language of section 576(c) mentions the anticipated effect on
others in connection with an owner's choice to prohibit admission of
persons involved in forms of criminal activity other than drug-related
criminal activity or violent criminal activity--to designate serious
forms of criminal activity in addition to drug crime or violent crime.
While section 576(c) confirms that an owner may deny admission to
criminal offenders, the law also specifies that this new statutory
authority is ``in addition to any other authority to screen applicants.
* * * '' Section 8 of the 1937 Act already provided that ``the
selection of tenants shall be the function of the owner.'' (See 42
U.S.C. 1437f(d)(1)(A).) In public housing also, there is nothing that
requires the PHA to admit certain families or precludes the PHA from
screening for potential of disruptive behavior. For many years, the
public housing regulations in part 960 have, in fact, required the PHA
to screen out families likely to engage in such behavior.
Following the structure of section 576 of the 1998 Act, Sec. 5.854
implements the mandatory screening provisions of paragraphs (a) and (b)
of the statute, and Sec. 5.855 implements the permissive screening
provisions of paragraph (c) of the statute. Section 576(c) permits
exclusion without a showing of current interference with others.
Comment. Based on section 576(c) of the 1998 Act, the rule should
require exclusion for past drug-related criminal activity in Sec. 5.854
(Sec. 5.853 of the proposed rule) to be limited to activity during a
``reasonable time preceding the date when the applicant household would
otherwise be selected for admission'' (or past criminal activity in
Sec. 5.854(a).)
Response. HUD agrees with the commenter about when the reasonable
period should apply and has added this language to Sec. 5.855(a)
(Sec. 5.854 of the proposed rule), which deals with the owner's
authority to prohibit admission for violent criminal activity or other
criminal activity that threatens the peaceful enjoyment of other
residents. In each case, HUD has made corresponding changes in
comparable provisions of Secs. 960.203 (concerning standards for PHA
tenant selection criteria) and 982.553 (concerning admission to the
Section 8 voucher program).
Comment. A legal aid organization recommended that HUD specify what
a reasonable time period is, for consistency nationwide. A distinction
should be made between an appropriate period for drug-related or
violent criminal activity and other disqualifying criminal activity,
with ``no more than three years'' applying to drug-related and violent
criminal activity, and a shorter period for other criminal activity. A
PHA that expressed an opinion on the subject recommended that the time
period be left to the determination of the owner (or PHA).
Response. HUD believes it would be too rigid for it to define a
reasonable time period in a manner that covers every circumstance
nationally. The reasonable time period is still left up to the owner
(or PHA) to determine in its admission policies. Owners and PHAs may
want to adopt standards that differentiate what is a reasonable period
for different categories of criminal activity. While HUD considers that
five years may be a reasonable period for serious offenses, depending
on the offense, some PHAs or owners may not agree. The owners and PHAs
should make these decisions in the best interests of their communities.
Comment. Legal aid organizations and a mental health organization
objected to the provision of proposed Sec. 5.853(c) (final
Sec. 5.854(a)) that permits an owner to establish a reasonable period
during which a person previously evicted from a federally assisted
project for drug-related criminal activity may be denied admission to
assisted housing. They argued that the statute sets this period at
three years, giving the owner authority to override the requirement to
deny admission if there is evidence of rehabilitation. They pointed out
that the rule would permit exclusion of a person on this basis for
longer than three years without any evidence that the applicant would
interfere with the health, safety, or enjoyment of other tenants, in
violation of the statute.
Response. Section 576(a) of the 1998 Act provides that an applicant
``shall not be eligible'' for admission to federally assisted housing
``during the three-year period beginning on the date of [eviction from
such housing by reason of drug-related criminal activity].'' However,
the statutory language does not in any way limit the authority of the
responsible entity to screen out applicants in any other circumstance--
whether for criminal activity or for any other reason. There is nothing
in the statute that requires an owner or PHA to admit an applicant who
has previously been evicted from federally assisted housing for drug-
related criminal activity at any point in time.
Since the intent of the statute was to strengthen protections
against admitting persons whose presence in assisted housing might be
deleterious, HUD does not interpret this new provision as a constraint
on the screening authority that owners and PHAs already had. Therefore,
the statute permits owners and PHAs to establish a reasonable period,
which may vary depending on the type of drug-related criminal activity
involved.
The final rule distinguishes the mandatory ineligibility provision
applicable during a three-year period from the owner's authority to
establish a reasonable period longer than three years to prohibit
admission of such applicants. The first, mandatory, prohibition on
admission is found in Sec. 5.854(a). The second, discretionary,
extension of the period of the prohibition is referenced in
Sec. 5.852(d)).
Comment. The exceptions permitting eligibility for a previously
evicted applicant are stated in proposed Sec. 5.853(a). The elaboration
on the statutory language ``the circumstances leading to the eviction
no longer exist'' provided in the rule are when ``the criminal
household member has died or is imprisoned.'' One commenter urged HUD
to add a third example: When that household member ``is no longer in
the household.''
Response. HUD declines to add this example (Sec. 5.853 of the
proposed rule is Sec. 5.854 at the final rule stage). Temporary absence
from the household is not a sufficient basis for granting an exception.
PHAs and owners can make determinations of circumstances that they are
certain satisfy the statutory language.
Comment. A PHA objected to Sec. 5.853(b) of the proposed rule
concerning submission of evidence related to drug-related criminal
activity, because the section appeared to require the submission of
evidence by every applicant, regardless of the absence of any
allegations of drug-related criminal activity by any household members
at any time. Other commenters expressed concern about abuse of the
authority to seek such evidence unless the evidence were sought from
every applicant.
Response. Proposed 24 CFR 5.853(b) was intended to implement the
provision of section 576(c) of the 1998 Act that provides the authority
to prohibit admission. The rule provides that the owner may choose to
consider the application of an applicant to whom the owner has
previously denied admission if the owner has sufficient evidence that
no member of the
[[Page 28780]]
household is engaged in criminal activity. In such a case, a family
must supply information or documentation required by HUD or the
responsible entity to make an admission decision. This provision, and
the statute on which it is based, do not preclude the owner from asking
for criminal background information in connection with the initial
application. (See Sec. 5.903(b) of this final rule with respect to
obtaining consent from every applicant family for release of criminal
records.)
Comment. An organization representing owners of assisted housing in
the State of Minnesota, wrote to point out conflicts between the
actions to prohibit admission of persons who have been engaged in drug
use and State law that prohibits discrimination on the basis of past
drug use. Does this rule preempt State law with respect to this
protection?
Response. HUD declines to speculate here about the applicability of
this rule to particular local situations. If there is a concern about a
specific potential conflict between the HUD rule and a State or local
law, the applicable HUD field office should be contacted.
Comment. One commenter criticized the statement in the preamble of
the proposed rule that the 1998 Act amendments to the 1996 Extension
Act provisions on ineligibility of illegal drug users and alcohol
abusers confirm that a PHA or owner may deny admission or terminate
assistance for the whole household that includes a person involved in
the proscribed activity. In essence, since rehabilitation of the
household member with the offending substance abuse problem is the only
way to cure the household's ineligibility, the preamble to the proposed
rule stated that the whole household is held responsible for that
member's rehabilitation. The commenter said that the statute did not
authorize such action.
Response. Both the denial of admission and termination of
assistance provisions of the 1998 Act contain provisions that give PHAs
the discretion to hold an entire household responsible for the actions
of members. Section 576(b) of the 1998 Act (42 U.S.C. 13661(b))
provides that a household must be denied admission if the household has
``a member'' with respect to whom the PHA or owner determines that it
has reasonable cause to believe is involved in illegal drug use or
alcohol abuse that is a threat to others. The statute provides that
rehabilitation of the member can render the household eligible for
admission. Similarly, section 577 of the 1998 Act (42 U.S.C. 13662(a))
allows a PHA or owner to terminate the tenancy or assistance for any
household with a member who is determined to be illegally using drugs
or whose illegal drug use or alcohol abuse is determined to be a threat
to others.
Comment. A legal aid organization stated that section 576(c)(2) of
the 1998 Act (42 U.S.C. 13661(c)(2)) gave HUD the responsibility for
specifying ``by regulation'' what would constitute sufficient evidence
to ensure that a member of the family who had engaged in criminal
activity has not engaged in such activity for a reasonable period. A
PHA recommended that the standard should be the absence of an arrest
for drug-related crimes within a time specified by the owner or PHA.
Response. HUD agrees that the rule should include more guidance
concerning the evidence obtained after the owner's initial denial of
admission because of criminal activity by a household member. The final
rule addresses this issue in Sec. 5.855(c), which states that an owner
would have ``sufficient evidence'' if the individual submitted a
certification that she or he is not currently engaged in and has not
engaged in such criminal activity during the reasonable period,
supported by evidence from such sources as a probation officer, a
landlord, neighbors, social service agency workers and criminal
records, which the owner verified. The applicant will need to supply
information that will permit the owner to contact these sources of
information, and the owner will need to verify supporting evidence.
Comparable changes have been made to the sections on both drug-related
and other crimes in parts 960 and 982.
D. Prohibiting Admission of Other Criminals--Secs. 855, 5.856, 960.204,
982.553
Comment. Two representatives of owners point out that Sec. 5.854 of
the proposed rule (Sec. 5.855 of the final rule) merely permits owners
to prohibit admission of applicants who are engaged in violent criminal
activity, while Sec. 5.853 of the proposed rule (Sec. 5.854 of the
final rule) requires owners to prohibit admission of applicants they
have ``reasonable cause'' to believe are currently involved in drug-
related criminal activity or alcohol abuse. They recommended that HUD
require denial of admission in both cases.
Response. The statutory language on which these two sections are
based makes that distinction. Compare section 576(c) with section
576(b)(1)(B) (42 U.S.C. 13661(c) with 13661(b)(1)(B)).
Comment. An organization representing owners suggested that the
rule may not permit denial of admission because of theft or fraud, or
any other crime that does not fit the definitions of threatening
criminal activity.
Response. The rule does not overrule an owner's authority to screen
tenants for crimes or behavior not described in the rule. Section 576
of the 1998 Act recognized existing screening authority of PHAs and
owners with its lead in phrase: ``in addition to any other authority to
screen applicants, * * *.'' [emphasis added] The final rule covers this
subject in a new Sec. 5.851. In addition, the final rule separates
mandatory actions from permissive actions, both of which reside in the
context of existing authority.
Comment. The requirement of Sec. 5.854(c) of the proposed rule to
check whether any member of a household is the subject of a lifetime
registration requirement under a State sex offender registration
program constitutes a significant burden. The search should be limited
to consultation with appropriate officials of the state in which the
PHA (or owner) is located and to any state in which the applicant is
known to have resided.
Response. HUD agrees that the search can be limited to these
states. The final rule reflects this policy--in the new Sec. 5.856 and
in Sec. 5.905(a).
E. Prohibiting Admission of Alcohol Abusers--Secs. 5.857, 960.204,
982.553
Comment. A legal aid organization argued that alcohol abusers must
be found to be a threat to others, and that the rule should focus on
behavior rather than status. The organization commented that this
provision should cross-reference the applicability of consideration of
rehabilitation.
Response. Section 5.857 of the final rule includes the link between
admissions standards and the alcohol abuser's impact on others, as the
proposed rule did. The rule concerning consideration of rehabilitation
is found in another paragraph of the same section in the case of public
housing (proposed Sec. 960.203; final Sec. 960.205) and the voucher
program (Sec. 982.553), and in a nearby section in the case of other
project-based programs (proposed Sec. 5.855; final Sec. 5.862), so no
cross-reference is necessary.
F. Termination of Assistance for Drug-Related Criminal Activity--
Secs. 5.858, 966.4(f)(12)(i) & (l)(5)(i), and 982.310(c)
Comment. A legal aid organization criticized regulatory language
that would allow a project owner to terminate an assisted tenancy
because a tenant ``has engaged in'' drug-related criminal activity. The
comment stated
[[Page 28781]]
that section 577(a) of the 1998 Act only supports eviction for past
drug-related criminal activity when there is a pattern of illegal drug
use that interferes with the ``health, safety, and peaceful enjoyment''
of others. The commenter recommended that the rule follow the statute
more closely and that the rule add a reference to consideration of
rehabilitation.
Response. Section 577 of the 1998 Act requires the owner to use
lease provisions that allow the owner to terminate tenancy if a
household member ``is illegally using'' a controlled substance, or if
the owner determines that drug use or abuse interferes with peaceful
enjoyment by other residents. However, section 577 of the 1998 Act does
not supplant or supersede statutory and regulatory authority that
authorize the owner to terminate tenancy for drug-related criminal
activity (e.g., for present or past drug dealing during the term of the
tenancy), or that require the owner to use a lease that allows the
owner to terminate the tenancy for such drug crime. The 1998 Act was
enacted to promote ``safety and security in public and assisted
housing'' by supplementing and strengthening existing statutory tools
for fighting criminal activity by assisting housing residents (see
subtitle F of the 1998 Act, which includes section 577).
For Section 8 programs, section 8(d) mandates that program leases
``shall provide'' that ``any drug-related criminal activity'' on or
near the premises by a covered person during the term of the lease is
grounds for termination of tenancy (42 U.S.C. 1437f(d)(1)(B)(iii)). The
additional ``safety and security'' requirements enacted in the 1998 law
must be implemented in tandem with the existing termination
requirements in section 8 of the 1937 Act, so that owners have
authority to evict drug dealers as well as drug users, and the
authority to evict for past drug-related criminal activity during the
term of tenancy, as well as for continuing or recent drug-related
criminal activity. Existing HUD program regulations for the various
assisted housing programs already provide authority for an assisted
project owner to terminate tenancy for drug-related and other forms of
criminal activity (see 24 CFR part 247, 24 CFR 880.607). Such
provisions are included in the HUD model lease for Section 8, Section
236, and Section 221(d)(3) below-market interest rate projects. The new
termination of tenancy requirements under this rule (Secs. 5.856 and
5.857 of the proposed rule; Secs. 5.858 through 5.861 of the final
rule) are consistent with termination of tenancy requirements in the
existing program regulations.
For public housing, the 1937 Act (section 6(l)(6)), 42 U.S.C.
1437d(l)(6)) requires that a PHA use leases that ``provide that any
criminal activity that threatens the health, safety, or right to
peaceful enjoyment of the premises by other tenants or any drug-related
criminal activity on or off such premises, engaged in by a [covered
person] shall be cause for termination of tenancy.'' Thus, the illegal
drug use criterion of section 577 of the 1998 Act adds little regarding
eviction of illegal drug users for the public housing program, but adds
a provision on alcohol abuse. None of the statutes explicitly addresses
the timing of the offending activity. The final rule does not include
the phrase ``during the term of the lease'' that would have been added
by the proposed rule, since that phrase is unnecessary. Activity
occurring only prior to the time the leaseholder signed the lease, or
the household member or guest joined the household or became a guest,
would not be a basis for termination of tenancy. The provision on
consideration of rehabilitation is not included in the eviction
provision itself but is included in the regulatory provisions that
address generally the authority of a responsible entity in making
admission and termination decisions (see Secs. 5.852, 960.203, 966.4,
982.310, and 982.552).
Comment. A PHA challenged the use of term ``on or near such
premises'' with respect to the location of the drug-related criminal
activity that is grounds for eviction (in proposed Sec. 5.856)
(eviction from assisted projects) and Secs. 982.310(c)(1)(i) and
(c)(2)(i)(C)) (eviction from housing of families assisted Section 8
tenant-based programs). A PHA noted that the phrase was changed to ``on
or off such premises'' by a 1996 statute.
Response. Sections 6(k) and 6(l)(6) of the 1937 Act now use the
term ``on or off such premises'' with respect to drug-related or
violent criminal activity in stating conditions for which leases must
require termination of tenancy, and in distinguishing which types of
termination of tenancy can be the subject of an expedited grievance
procedure, respectively, in the public housing program. However,
sections 8(d)(1)(B)(iii) and 8(o)(7)(D)of the 1937 Act, concerning
leases used in the Section 8 programs, still use the term ``on or near
such premises'' with respect to drug-related criminal activity that is
cause for termination of tenancy. Section 576(c) of the 1998 Act,
referenced in section 6(l)(7) of the 1937 Act, provides for denial of
admission on the basis of drug-related or violent criminal activity,
without mention of its location.
In the final rule, the provisions applicable only to public housing
(part 966) use the term ``on or off.'' References to ``on or near'' are
found in all the provisions concerning termination of tenancy
applicable to Federal Housing Administration subsidized housing and
assisted housing for the elderly, as well as to the Section 8 program
(part 5, subpart I, and part 982).
Comment. One commenter pointed out that Sec. 966.51(a)(2)(i)(B),
which implements the expedited public housing grievance procedure
provision of the statute, should reflect the statutory change
authorizing eviction for drug-related criminal activity ``on or off''
public housing premises.
Response. HUD has made this change.
Comment. Two representatives of public housing tenants objected to
the provision of Sec. 966.4(f)(12)(i) that permits eviction from public
housing based on criminal activity off the premises by a guest of the
household unrelated in time to the visit to the premises and unrelated
to its effect on residents of the premises or the vicinity. One of them
stated that the Section 8 rule is more reasonable in that the Section 8
rule only permits such eviction if the guest's criminal activity took
place on or near the premises. This commenter suggested that the
provision requires a demonstration that the resident had control over
the guest's actions and that the actions constituted a serious
violation of the resident's lease. Another commenter suggested that the
criminal activity serving as the basis for termination be required to
take place on the premises.
Response. HUD is not persuaded by these arguments to change the
``on or off the premises'' language of rule, because the ``on or off
the premises'' language in the statute pertaining to public housing, 42
U.S.C. 1437d(l)(6), potentially applies to guests and ``other persons
under the tenant's control,'' and is not qualified by whether the
resident knew about or literally ``controlled'' the guest's unlawful
actions. Rather, the question is one of legal control; by ``control,''
the statute means control in the sense that the tenant has permitted
access to the premises. See HUD's 1991 rule on public housing lease and
grievance procedures, 56 FR 51560, 51562 (``the question * * * is
whether the person in question was in the premises with the consent of
a household member at the time of the criminal activity * * *.'') See
also, for example, Housing Authority of New
[[Page 28782]]
Orleans v. Green, 657 So.2d 552, 553 (La.Ct.App.), writ denied, 661
So.2d 1355 (La.1995), cert. denied, 517 U.S. 1169, 116 S.Ct. 1571, 134
L.Ed.2d 670 (1996). HUD has revised the definition of ``guest'' and
added a definition of ``other person under the tenant's control'' to
the general definitions section of 24 CFR part 5. HUD has also revised
24 CFR 966.4(f)(12) and 966.4(l)(5)(i)(B) to clarify how the concept of
``control'' relates to tenant liability for the behavior of guests and
others.
In order to provide guidance as to the scope of the tenant's legal
control and hence potential responsibility, the rule has been revised
to provide that a ``guest'' is a person temporarily staying in the unit
with the consent either of the tenant or of a household member with
express or implied authority to consent on behalf of the tenant. The
definition of ``guest'' also has been revised to clarify that the
activity of a guest is actionable under this provision only if the
activity takes place while the person is a guest; only in that case can
the tenant's legal control extend to actions that occur off public
housing premises.
In contrast, if a person (with the tenant's consent) visits public
housing premises for only a short period of time and is not ``staying''
in the tenant's unit, the tenant's legal control necessarily would be
limited by the brevity of the visit and would not extend to activity
off public housing premises. Because the rule's definition of ``guest''
now includes only persons ``staying'' in the unit with consent, the
rule uses the phrase ``other person under the tenant's control'' to
denote this latter category of non-guest invitee, over whom the
tenant's legal control necessarily applies only during the period of
invitation onto public housing premises. HUD has made similar changes
in the relevant sections dealing with Section 8 assistance to make
those provisions consistent with public housing.
HUD has also clarified that a commercial visitor such as a delivery
person only visiting the premises for the purpose of making a delivery
and having no other contact with the unit or relationship with the
tenant ordinarily would not be a person under the tenant's control, and
hence the tenant would not be liable for any improper activity by the
delivery person. HUD has added to the definition of ``other person
under the tenant's control'' a sentence clarifying the exclusion from
the definition of persons on the premises for brief, infrequent visits
for legitimate commercial purposes. Of course, if it could be shown
that if such a commercial visitor were engaging in prohibited activity
and the tenant knew about it or was somehow involved in it, there would
be no such exclusion.
Some courts have disagreed with HUD's concept of legal control and
have read into 42 U.S.C. 1437d(6)(l) a requirement that the tenant have
some degree of knowledge or ability to control the unlawful behavior.
See, for example, Rucker v. Davis, 237 F.3d 1113 (9th Cir., 2001) (en
banc).
If individual PHAs are subject to binding court decisions, of
course they should follow them even though HUD's interpretation may
differ. Quite apart from these decisions, PHAs may conclude in
particular instances that no useful purpose would be served by
terminating a tenancy on the basis of a crime committed by a guest or
other person with whom the leaseholder only had a minimal connection.
The fact that statutorily required lease provisions would allow PHAs to
terminate tenancy under certain circumstances does not mean that PHAs
are required to do so in each case where the lease would allow it.
Comment. A PHA requested that in the Section 8 tenant-based
assistance program HUD not restrict an owner's right to terminate
tenancy for violent criminal activity that occurs only ``on or near the
premises.'' The owner should not have to wait until the criminal
activity comes ``home'' before removing such a tenant.
Response. Section 8 authorizes eviction for violent criminal
activity ``on or near the premises,'' or alternatively for any criminal
activity that threatens other residents of the development or the
peaceful enjoyment of their homes of residents in the vicinity (42
U.S.C. 1437f(d)(1)(B)(iii) and 1437f(o)(7)(D)). The final rule reflects
these distinctions. (See Sec. 982.310.)
G. Evicting Other Criminals--Secs. 5.859, 966.4(l)(5), 982.310(c)(2),
and 982.553(b)(2)
Comment. A legal services organization recommended restoring
language of Sec. 966.4(l)(5), preserving for PHAs (and adding for
courts) ``discretion to consider all of 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.'' The commenter
cited support for this position in a Congressional committee report on
the 1990 amendment to the statutory foundation for this provision. That
report suggested that eviction would be inappropriate if the tenant had
no knowledge of the criminal activities of guests or had taken
reasonable steps to prevent the activity. (S. Rep. No. 316, 101st
Congress, 2d Sess. 179, reprinted in 1990 U.S. Code Cong. & Admin. News
5763, 5941.) The commenter urged changes to the rules for Section 8
project-based and tenant-based assistance, as well, to encourage courts
to consider all circumstances and exercise discretion in a humane
manner when evicting a tenant for another person's criminal activity.
Response. As discussed in more detail elsewhere in the preamble,
the final rule allows the necessary flexibility for PHAs with respect
to public housing and owners with respect to project-based assistance
and tenant-based assistance. This is consistent with the cited
committee report language, which in any event has not been reflected in
any statute. The committee report language for both the House and
Senate versions of the QHWRA emphasizes efforts to make assisted
housing safer for residents, which is consistent with the final rule.
The statute does not authorize courts to exercise this same type of
discretion. Courts determine whether a violation of the lease has
occurred and whether the lease provides that such a violation is
grounds for eviction of the persons whom the PHA seeks to evict. In the
latter regard, HUD recognizes that some courts, such as the Ninth
Circuit in Rucker v. Davis, prompted by their differing view of
Congressional intent, have read into the lease provision mandated by
Section 6(l)(6) a requirement that a PHA, in certain circumstances,
demonstrate particularized fault or other lack of ``innocence'' on the
part of a leaseholder when a PHA seeks to terminate a lease based on a
crime committed by someone other than the leaseholder. Obviously, PHAs
must abide by any such binding court decisions in their jurisdictions,
even though HUD has a differing view. However, it is important to
recognize that even in those jurisdictions, a court's function under
HUD's regulations is to determine whether an eviction meets the
requirements of the lease and of Section 6(l)(6) as they have been
interpreted in that jurisdiction, and not whether a PHA has considered
additional social and situational factors that HUD's regulations
authorize, but do not require, a PHA to consider in making its decision
whether or not to pursue eviction of any family or individual whom,
under the lease, the PHA has the legal right to evict (see, for
example, Sec. 966.4(f)(5)(vii)(B).) See Minneapolis Public Housing
Authority v. Lor, 591 N.W.2d 700 (Minn. 1999).
[[Page 28783]]
Comment. Another commenter took a different view of such discretion
conferred on PHAs with respect to termination of tenancy. A legal
organization representing PHA interests, stated that when PHAs are
given discretion to do something they are not required to do it.
Certainly, courts should not exercise the discretion for them. To avoid
this possibility, this commenter recommended adding language to the
effect that (a) the existence of discretion on the part of PHAs does
not obligate them to exercise the discretion in any particular case;
and (b) the discretion in the regulation is not intended to confer the
discretion to consider circumstances other than proof of lease
violation on any court or party other than the PHA. The commenter
argued that such a position is consistent with the policy of giving
PHAs the maximum flexibility possible in the operation of assisted
housing, ensuring safe and livable environments.
Response. HUD agrees that conferring discretion on PHAs to take
action does not require them to take action, and that HUD's conferral
of discretion on PHAs in deciding whether to terminate tenancy in each
case does not constitute a conferral of discretion on local courts to
consider factors other than those appropriate under the lease. Of
course, by the same logic, it should also be noted that, insofar as
PHAs possess discretion to determine for themselves when to initiate
eviction proceedings, they are neither required by law nor encouraged
by HUD to terminate leaseholds in every circumstance in which the lease
would give the PHA grounds to do so. However, the rule does not need to
add the language suggested by the commenter as these points are already
inherent in the regulatory language.
Comment. One PHA recommended that, in the Housing Choice Voucher
Program, the rule authorizing an owner to terminate the tenancy of any
tenant who engages in violent criminal activity on or near the premises
(Sec. 982.310(c)(2)) should be revised to cover commission of a felony
or serious misdemeanor, regardless of where it was committed. This PHA
also recommended a change in the provision that prohibits participants
from engaging in drug-related or violent criminal activity, or other
criminal activity or alcohol abuse that threatens the health, safety,
or peaceful enjoyment of the premises (Sec. 982.551(l) and (m). The
commenter urged HUD to revise this provision so that the criminal
activity that is actionable does not require force and does not have to
be committed in the vicinity of the development. Provisions authorizing
PHAs to terminate assistance to participants (Secs. 982.552 and
982.553) should also be revised, according to this commenter, to permit
termination of assistance of participants who commit a felony or
misdemeanor, regardless of where it is committed. This recommendation
is based on the need for public support for assisted housing programs.
Response. In the voucher program, an owner's termination of tenancy
must be based on a serious or repeated violation of the lease,
violation of law that imposes obligations on the tenant in connection
with occupancy, or other good cause (Sec. 982.310). The existing rule
describes certain types of criminal activity that violate federal law
with respect to the obligations of tenants. This rule amends the
existing regulations to reflect the requirements of the statutes it is
implementing with respect to criminal activity and tenant obligations
as they relate to an owner's right to terminate tenancy. This rule also
reflects these provisions with respect to a PHA's rights and
obligations to terminate assistance with respect to criminal activity.
The statutes being implemented in this rulemaking specifically
require owners to adopt leases that authorize eviction for illegal drug
use (or for a pattern of illegal drug use that would interfere with
other residents' rights) without regard to location, but they do not
broaden the type of criminal activity or remove the proximity condition
with respect to other drug-related or violent criminal activity as the
commenter urges HUD to do in the rule. Nonetheless, the rule permits an
owner to specify in the lease grounds for eviction other than those
specifically mandated by these statutes to be included in the lease or
to evict for ``other good cause.'' An owner who used a standard lease
that provided that commission of any felony or serious misdemeanor by a
household member is grounds for termination would have grounds to evict
a tenant for serious lease violation for such criminal behavior, in
accordance with Sec. 982.310, if that lease provision were consistent
with State and local law and were applied equally to voucher holders
and other tenants. (See section 8(o)(7)(B) (42 U.S.C. 1437f(o)(7)(B).)
``Other good cause'' is subject to interpretation by local courts, but
may well encompass some categories of activity and location that the
commenter seeks to cover.
Comment. One commenter stated that there is statutory authority for
termination of tenancy for criminal activity other than drug-related
criminal activity if the criminal activity is a threat to others in the
Section 8 existing housing program. While that authority is reflected
in Sec. 5.857 of the proposed rule, applicable to termination of
tenancy in the project-based assistance program, there is no comparable
provision pertaining to tenant-based assistance.
Response. Section 982.310(c)(2) of the proposed rule reflects this
authority. Since the statute speaks in terms of termination of tenancy,
not termination of assistance, the language is not repeated in the
section on termination of assistance in the tenant-based assistance
program, Sec. 982.553.
Comment. One PHA expressed disappointment that the public housing
rule provision on termination of tenancy does not go farther, to
terminate for violent criminal activity on or off the premises and for
criminal or other activity by a covered person that threatens other
residents, PHA employees, or residents in the immediate vicinity. The
PHA stated that the provisions of the ``Public Housing Management
Reform Act of 1997'' require that these form the basis for termination
of tenancy in the public housing program.
Response. The referenced proposed legislation was not enacted. This
final rule implements the legislation that was enacted. The 1937 Act
already provided for termination if a member of the household, guest or
other person under the tenant's control engaged in criminal activity
that threatens residents or in any drug-related criminal activity on or
off the premises.
Paragraphs (1)(2)(iii) and (1)(5) of Sec. 966.4 of the proposed
rule addressed the issue of what activity forms the basis for
termination of tenancy--the first in terms of what constitutes ``other
good cause'', and the other in terms of criminal activity or alcohol
abuse that is actionable, based on the recent statutory revisions.
Notable differences between the two provisions are that:
(1) Paragraph (1)(2) used the term ``member of the household'',
whereas paragraph (1)(5) used the broader term ``covered person,''
which is defined in Sec. 966.2;
(2) Paragraph (1)(2) addressed other criminal activity if the
activity is a threat to others, whereas paragraph (1)(5) addressed only
criminal activity; and
(3) Paragraph (1)(2) was silent about where the activity takes
place, whereas paragraph (1)(5) specified that drug-related criminal
activity is actionable regardless of whether it is committed on or off
the premises.
The final rule consolidates these provisions in paragraph (1)(5).
The
[[Page 28784]]
consolidated provision deals only with criminal activity. The final
rule retains the reference to ``covered person,'' with the difference
that, in the case of drug-related criminal activity, in order to
clarify the reasonable extent of the tenant's legal ``control,'' the
rule, as discussed above, differentiates between ``other person under
the tenant's control'' and tenants themselves, guests and other
household members. The final rule maintains the provision that
specifies the location of criminal activity only with respect to drug-
related criminal activity, consistent with the statute for public
housing. (Authority for Section 8 project-based assistance is similar
to that for public housing on this issue, while the authority for
tenant-based assistance (section 8(o)(7)(D)) puts violent criminal
activity in the same category as drug-related for purposes of the
location where it takes place--``on or near the premises''.) It is
clear, however, that if violent criminal activity threatens the
residents of the housing, that activity would be actionable under the
rule, even without the location being specified.
Comment. Section 5.857(a) of the proposed rule requires that
criminal activity that threatens the health, safety, or peaceful
enjoyment of their residences by persons residing in the ``immediate
vicinity of the premises'' is cause for termination of tenancy (based
on the authority of sections 8(d)(1)(B)(iii) and 8(o)(7)(D)). For the
public housing program, the proposed rule seemed to cover action that
is a threat to persons residing in the ``immediate vicinity'' in
Sec. 966.4(l)(2) but did not in Sec. 966.4(l)(5). That difference was
resolved in favor of covering such impact. Two representatives of
owners asked for guidance on the meaning of the phrase ``immediate
vicinity of the premises.'' Litigation impeded their implementation of
``on or near the premises'' language formerly found in the 1937 Act. A
PHA asked whether ``near the premises'' in proposed Sec. 5.856 and ``in
the immediate vicinity of the premises'' in proposed Sec. 5.857 had
different meanings, and whether either of them meant farther away than
the ``1000 feet'' away that their current leases provide. A tenant
organization also asks for clarification of what specific distance is
meant.
Response. The terms used in proposed Secs. 5.856 and 5.857 (final
Secs. 5.858 and 5.859) are both derived directly from the statute. The
courts will interpret these terms as part of endorsing or repudiating
actions taken by PHAs under their standards.
Comment. Proposed Secs. 5.857(b) and 982.553(b)(2)(ii) (see also,
Secs. 966.4(l)(5)(ii)(B)) require that the lease must provide that the
owner may terminate the tenancy if a member of the household is fleeing
prosecution or confinement for a felony or is violating parole. A PHA
pointed out that although the rule requires the lease to contain this
provision, the rule states that PHAs and owners ``may'' terminate
tenancy on this basis. The PHA objects to requiring this as a lease
provision if the PHA or owner has no intention of enforcing it. An
owner representative points out that a court is unlikely to enforce
such a provision by evicting an entire family because one person fits
one of these categories. The commenter states that it is more likely
that the court would simply evict the offender if the other household
members have not caused a disturbance and are current in the rent.
Response. The rule provisions follow the statutory requirements.
This final rule does make one adjustment: where the proposed rule
applied the fugitive felon provision to ``a member of the household,''
in fact, Section 6(l)(9) of the 1937 Act, as added by section 903 of
the Personal Responsibility and Work Opportunity Reconciliation Act of
1996, Pub. L. 104-193, 110 Stat 2105, requires PHAs to use leases that
provide that the fact that a ``tenant'' is fleeing to avoid
prosecution, custody or confinement for a felony, or is violating a
condition of probation or parole, is a basis for termination of
tenancy. Similarly, section 8(d)(1)(B)(v) of the 1937 Act requires HAP
contracts between PHAs and Section 8 owners to require the owners to
use leases that include the fugitive felon provisions in respect to
``tenants'' as a basis for termination of tenancy. Section 8(o)(7) of
that Act requires the HAP contract between a PHA and owner
participating in the Section 8 voucher program to contain terms
generally applicable to the owner's other tenants and include any
addenda required by the Secretary. This provision is included in an
addendum required by the Secretary for the voucher program. Hence, the
final rule applies the fugitive felon provisions to ``tenants.'' Of
course, a PHA can include additional lease provisions that do not
violate 42 U.S.C. 1437d(l)(2) or any express statutory provision.
Hence, PHAs may include, so long as they do not violate any applicable
laws, reasonable lease provisions that could, for example, require the
tenants to exclude fugitive felons or parole violators from the
household, and make failure to do so a basis for breach of the lease.
Of course, PHAs may also consider other circumstances per section
982.552(c)(2).
While some PHAs and owners may choose not to take action against
tenants who are fleeing felons or parole violators, the statute
requires that PHAs and owners use leases that afford that option. The
statutes and these implementing regulations also leave to PHAs and
owners sufficient discretion to use their authority in a way that
serves the best interests of the development and the community.
It should be noted that proposed Secs. 5.857(b) is Sec. 5.859(b) in
this final rule. Also, the Section 8 fugitive felon provision, proposed
982.553(b)(2)(ii), is located at Sec. 982.310(c)(2)(ii) of the final
rule.
H. Evidence of Criminal Activity--Secs. 5.861, 966.4(l)(5), and
982.553(c)
Comment. A legal aid organization and a mental health organization
challenged this section because the section does not specifically
reference a threat posed by the criminal activity to other residents.
(Other similar sections cited by the commenter were
Secs. 882.518(b)(3), 960.203(d), 966.4(l)(5)(iii), and 982.553(c).)
Response. The intent of proposed Sec. 5.858 was not to provide an
independent basis for denial of admission or termination of tenancy but
to add a provision applicable to all the other sections. HUD has
clarified that by adding to that section (Sec. 5.861 of the final rule)
after the words ``by a family member'' the phrase ``in accordance with
the provisions of this subpart,'' and comparable language to
Sec. 966.4(l)(5). In fact, Secs. 882.518(b)(3), 960.203(d), and
982.553(c) already contain such references.
Comment. Several commenters noted that Sec. 982.553(c) uses the
term ``household member'' as opposed to ``covered person''; stated that
the same problem is found in Sec. 982.310(c)(1)(B) and (c)(3); and
questioned where there is any significance to that difference in
terminology.
Response. The statutory restrictions on admission pertain to
members of the household, while most (but not all) provisions relating
to termination of tenancy refer to actions by the broader category of
``covered person'' (which includes tenants, guests, and ``other persons
under the tenant's control''). (As examples of eviction provisions that
apply to categories more narrow than ``covered person,'' see Sec. 577
of QHWRA, 42 U.S.C. 13662 (household members) and 42 U.S.C. 1437d(l)(9)
(tenants).) The sections in the final rule that apply only to
termination of tenancy use the term ``covered person,'' except that, in
some
[[Page 28785]]
cases where the proposed rule referred to ``covered person,'' the final
rule differentiates between tenants, household members and guests and
``other persons'' in order to clarify potential tenant responsibility
for the off-premises actions of others.
Comment. A problem was stated by representatives of owners, PHAs,
and tenants: what type of evidence and what standard of evidence should
be used to determine that a person has engaged in criminal activity.
The proposed rule just stated that the owner or PHA need not rely on an
arrest or conviction. Some commenters observed that, in the absence of
a conviction, courts have been skeptical of owners seeking to evict a
tenant for criminal activity, and owners are generally not prepared to
provide their own witnesses to prove such an offense. Proposed
solutions included (1) stating only that a conviction is unnecessary;
(2) restoring the language of the current Sec. 982.553(c), which
authorizes a PHA to terminate assistance when a preponderance of the
evidence indicates that a family member has engaged in drug-related or
violent criminal activity; and (3) stating who bears the burden of
proof and the procedures to be followed. The legal aid organization
recommending the second solution said that it interprets this language
to mean that the allegation is more likely so than not so. The
organization recommends this standard to avoid arbitrary determinations
by owners or PHAs.
Response. In the final rule, HUD has adopted the first recommended
approach with respect to most programs. Section 5.861 specifies that
with respect to eviction for criminal activity, neither an arrest nor a
conviction is necessary, and the responsible entity need not satisfy
the standard of proof used for a criminal conviction. This provision is
replicated elsewhere for public housing (Secs. 960.203(d) and
966.4(l)(5)(iii)). For termination of assistance, however, in the
Section 8 tenant-based and moderate rehabilitation programs, the final
rule retains the reference to preponderance of evidence, since there is
no expectation of a court proceeding with respect to this termination
of a benefit, and HUD wants to assure that the action is not taken
lightly. (See Secs. 882.518(d), 982.310(c), and 982.553(c).)
I. Terminating Assistance to Alcohol Abusers--Secs. 5.860, 966.4(l)(5),
982.310(c), and 982.553(b)
Comment. A legal services organization criticized these sections
for appearing to require abstinence from alcohol to be considered
rehabilitated from alcohol abuse that would threaten others. The
language of Sec. 982.553(e) of the proposed rule, for example, refers
to a ``household member who is no longer engaging in such abuse'' and
successful completion of ``a supervised drug or alcohol rehabilitation
program.''
Response. These provisions (the language of Sec. 982.553(e) is
found in Sec. 982.552(c)(2)(iii) of the final rule) relate only to
cessation of alcohol ``abuse'' sufficient to constitute a threat, and
to the PHA's option to consider the successful completion of a
treatment program. The commenter reads content into the rule that is
not there. Therefore, HUD declines to change the rule in response to
this comment.
Comment. An owner's representative noted that, although the owner's
lease must provide for termination of tenancy for alcohol abuse that
threatens the health or safety of other residents, the action to
terminate such a tenancy is a voluntary one by the owner. This
decreases the potential conflict between human rights protection for
alcohol abusers and this rule.
Response. HUD agrees with this comment. No change in the language
of the rule is needed.
J. Drug Use and Alcohol Abuse: Consideration of Circumstances--
Secs. 5.852, 966.4(l)(5), 982.553(e)
Comment. A resident organization objected to the fact that an owner
is not required to consider whether the household member involved has
completed or is participating in a rehabilitation program. Another
organization recommended that the rule make more explicit that a PHA is
not required to consider rehabilitation.
Response. The statute clearly states that the PHA or owner may
consider whether the person is rehabilitated. The rule reflects this
statutory language in Sec. 5.852 of the final rule.
Comment. A legal services organization criticized the organization
of the treatment of rehabilitation as a consideration in admission and
termination decisions. This commenter recommended creating a stand-
alone section on rehabilitation that is then cross-referenced in all of
the admission and termination-related sections.
Response. In subpart I of part 5, proposed Sec. 5.860 addressed the
issue of rehabilitation, and the final rule continues to address this
matter in Sec. 5.852. Each of the specific program regulations contains
a comparable provision. Of course, where rehabilitation is an element
that would render an applicant not ineligible under the law--with
respect to a tenant previously evicted for drug-related criminal
activity--the applicable rule provision mentions this element.
Additional language to cross-reference these rehabilitation provisions
is unnecessary.
Comment. Proposed Sec. 5.860(a) includes three ways of
demonstrating rehabilitation: (1) current participation in a supervised
program; (2) successful completion of a supervised program; or (3)
otherwise having been rehabilitated successfully. A legal aid
organization and a mental health organization pointed out in paragraph
(b) of this section does not include the third prong in the discussion
of the types of evidence that may be submitted by a household member
and argues that such persons (who may have succeeded with Alcoholics
Anonymous) should not be excluded for lack of proof of participation in
a supervised program. (See the comparable provisions in parts 882, 960,
and 966.)
Response. HUD has revised the rule in response to this comment (See
section 5.852(c) of the final rule).
Comment. One legal aid organization criticized the provision that
requires evidence to be provided of participation in rehabilitation
program, claiming that the requirement inherently conflicts with the
privacy of rehabilitation records and the lack of any obligation on the
part of rehabilitation facilities to provide information to PHAs or
owners.
Response. The statute contemplates consideration by the PHA or
owner of such evidence. (see 42 U.S.C. 13661(b)(2).) In order to be
able to consider the evidence, the regulation provides that the PHA or
owner may require the applicant or tenant to provide it. In addition,
the household could provide the evidence voluntarily to bolster its
application for admission or its response to a proposal to terminate
tenancy.
Comment. Two organizations representing tenants objected to
provisions, such as proposed Sec. 5.860(b)(1), that permit an owner or
PHA to require the exclusion from the household of a person who engaged
in or is culpable for the drug use or alcohol abuse. They contended
that such authority could be used against individuals who have been in
recovery for a long period of time and present no threat to other
tenants or the premises. They argued that such treatment would
constitute a violation of their rights under the Fair Housing Act and
the Americans with Disabilities Act.
Response. This provision has no effect unless the owner or PHA has
the right under the regulations to deny admission or to terminate
tenancy on the basis of
[[Page 28786]]
the offending activity. The regulation follows the statute.
Comment. Another commenter suggested that HUD revise the rule's
provision for conditional admission or continued assistance to provide
that after the eligibility determination is made, the household be
allowed to decide whether to revise its composition to eliminate a
member whose conduct prevents admission or continued occupancy for the
entire household.
Response. Owners and PHAs may permit withdrawal of a problematic
family member from the applicant's household once a negative decision
has been made, but there is no statutory basis to require them to do
so. The final rule addresses this matter in Sec. 5.852.
Comment. A legal organization representing PHA interests and a
representative of public housing and Section 8 tenants advocated
extending the discretion of PHAs to exclude a household member to avoid
evicting innocent family members more broadly than provided in the
proposed rule. For example, Sec. 966.4(1)(5)(vi)(B) of the proposed
rule would give PHAs the discretion to impose as a condition of
continued assistance to family members the exclusion of the household
member engaged in alcohol and drug abuse but does not cover criminal
activity generally.
Response. In fact, one section currently mentions the authority to
exclude culpable family members with respect to any action or failure
to act on the part of the family--Sec. 982.552(c)(2)(ii), as amended on
October 21, 1999 (64 FR 56915). On further reflection, HUD has decided
that the responsible entity's authority to exclude culpable family
members should be stated explicitly, and this authority should apply to
any basis for termination. As discussed above, HUD has created a
section in 24 CFR part 5 to address this issue, Sec. 5.852, and HUD has
revised sections that previously just applied to drug and alcohol abuse
to deal more broadly with a responsible entity's authority in this
area. HUD has revised Sec. 982.552(c) to reflect a PHA's authority
generally in screening and eviction.
K. Access to Criminal and Drug Treatment Records and Information--
Secs. 5.903, 5.905, 960.204, 960.205 and 982.553
Comment. A legal organization representing PHA interests suggested
that information about a person being subject to a lifetime sex
offender registration requirement might be obtained in more than one
way. The organization requested that the rule require denial of
admission to an applicant if law enforcement authorities inform the
owner or PHA that a member of the household is subject to such a
requirement, making the public document check or PHA criminal history
background check unnecessary in such a circumstance.
Response. The method a responsible entity uses to assure that it is
not admitting a person ineligible on this basis is up to the
responsible entity, based on its assessment of good business practice.
The primary regulatory provision on sex offender registration
verification is Sec. 5.905, which applies only to obtaining records
under section 578 of the 1998 Act (42 U.S.C. 13663). (See also
Secs. 960.204(a)(4) and 982.553(a)(2)(ii).) A responsible entity may
verify such information in another manner, such as obtaining
information lawfully from law enforcement agencies or other sources, or
directly accessing a listing of persons subject to a lifetime
registration requirement under a State sex offender registration
program.
Comment. A PHA asked what agencies maintain information about
persons who are subject to a lifetime sex offender registration
requirement. The PHA stated that its local law enforcement agencies do
not keep this information.
Response. Many states have passed legislation that authorizes the
establishment of automated data bases that provide information on all
registered sex offenders. (For example, the Texas Department of Public
Safety maintains a web site at www.sexoffenders.com with this
information, in compliance with State law.) In states where an
automated system is not yet in operation, a responsible entity may need
to perform another form of criminal history check. In such States, a
computerized inquiry may generate a message that suggests contacting
the Governor's office or District Attorney to obtain information on
registered sex offenders.
Comment. A PHA organization objected to the provisions of
Sec. 5.902(d) and (e) of the proposed rule, which provide for PHAs to
obtain records for owners and to apply owners' admissions standards,
and the underlying statutory provisions. The organization stated that
PHAs are not in the business of interpreting leases and owners'
application criteria and that this function is not consistent with the
responsibility or mission of public housing.
Response. The statute (42 U.S.C. 1437d(q)(1)(B) requires these
procedures, which are found in Sec. 5.903 of the final rule.
Comment. A legal organization representing PHA interests suggested
that Sec. 5.902(f) of the proposed rule be modified to provide that a
PHA could condition the performance of criminal records checks and
applying the owner's admissions standards on obtaining a reasonable
agreement with the owner holding the PHA harmless from costs associated
with third-party claims and litigation arising out of the performance
of these services. The organization recommended that the rule
specifically hold PHAs harmless from legal actions directed at the
owner because of the owner's admission policies, action or inaction,
and regarding the owner's use of criminal conviction records, should
the PHA be required to disclose them in accordance with
Sec. 5.902(f)(8) of the proposed rule.
Response. Congress has made performance of these criminal records
checks for owners part of the responsibilities of PHAs. (See 42 U.S.C.
1437d(q)(1)(B).) They must, therefore, perform them in accordance with
legal requirements, including the requirements not to act negligently
and to adhere to confidentiality provisions of the statute. However,
HUD agrees that PHAs should not be required to absorb costs incurred as
the result of being brought into litigation arising from a challenge to
the validity of an owner's admission standards.
The final rule makes two changes in response to this comment.
Paragraph (d)(4) of Sec. 5.903 provides that the reasonable costs
incurred by a PHA for which the PHA is entitled to reimbursement
includes not only any fees charged to the PHA by the law enforcement
agency but also the PHA's own related staff and administrative costs.
The administrative costs would include a portion of insurance costs to
cover any potential liability for performing functions for owners and
litigation costs that are solely attributable to the owner's policies.
With respect to release of criminal records to the owner,
Sec. 5.903(e)(2) of the final rule provides protection for a PHA
requested to release records in connection with an eviction. The new
paragraph provides that the PHA may rely on an owner's certification
that the criminal record is necessary to proceed with a judicial
eviction to evict the tenant based on criminal activity of the
identified household member as demonstrated by the criminal conviction
record.
Comment. An owner's representative suggested that HUD require
current residents to sign consent release forms
[[Page 28787]]
for criminal background checks at the annual reexaminations. Otherwise,
problem tenants may refuse to sign a consent form.
Response. The occasion for residents to sign a consent form for
verifications related to their occupancy of assisted housing is not
currently prescribed by regulation. HUD declines to change that policy
in this rulemaking, but is exploring a possible change in this policy
in the future.
Comment. One PHA reported that the FBI has refused to give the PHA
the identification number that is necessary to access the background
records because the PHA does not administer a public housing program,
in addition to its Section 8 housing assistance programs.
Response. Section 575(c) of the QHWRA expanded the applicability of
criminal background check authority from ``public housing'' to
``covered housing assistance,'' which includes tenant-based and
project-based assistance under Section 8. That section also required
that a PHA receiving information on behalf of an owner keep the
information it receives confidential, in accordance with regulations to
be prescribed by HUD. Therefore, the FBI is awaiting publication of
this final rule before providing access to criminal records to PHAs
that do not administer a public housing program.
Comment. A PHA and a representative of housing owners reported that
private apartment owners routinely obtain criminal conviction records,
as well as numerous other types of confidential records, directly or
through firms that provide screening services. They questioned the need
to give PHAs responsibility to obtain such records and apply the
owner's criteria to screen applicants. One suggested this only be done
where an owner certifies and documents that it is unable to access
criminal conviction records directly or through a readily available
service. The other recommended that the rule authorize owners to obtain
the records directly and require them to establish a system of records
management that would adequately safeguard them.
Response. The final rule is not changed with respect to this
request. The statute does not require that access through PHAs be a
last resort. This rule does not prevent owners from obtaining records
in another way, as stated in Sec. 5.903 of the final rule.
Comment. A PHA indicated that the rule provisions authorizing PHAs
to charge owners a fee for obtaining criminal records relevant to the
owner's admission or occupancy standards ignore the difficulty of
establishing what is a reasonable fee. How will disputes be resolved?
Other PHAs indicated that they do not have the staff to perform the
criminal records (or sex offender registration) check function, and
charging a fee could not provide sufficient compensation for them to
hire additional staff. They also objected to expecting a PHA to review
owners' policies and make decisions regarding admission for the owners,
saying it would be an undue burden and would subject the PHA to
potential liability.
Response. The statute requires PHAs to perform the function. They
may, however, pass along the costs attributable to performing this
function to the owner. See discussion above responding to concerns
about liability. HUD trusts that owners and PHAs will be able to reach
agreement on reasonable fees to reimburse PHAs for their costs.
Comment. Two State housing finance agencies and an organization
representing State housing agencies questioned whether the statute and
regulation requiring a PHA to obtain criminal records on behalf of an
owner apply to their operation of Section 8 New Construction and
Substantial Rehabilitation projects. Although they agreed that criminal
records are required to be provided by PHAs administering ``covered
housing assistance,'' which does include such projects, they stated
that the term used with respect to owner requests for assistance is
``project-based assistance under Section 8,'' which is defined in
section 8(f)(6) not to include new construction and substantial
rehabilitation projects. They argued that project owners should be
responsible for performing this function.
Response. The legislative history indicates a clear intent to cover
new construction and substantial rehabilitation projects under the
provision requiring PHA performance of this function. (See H.R. 2,
105th Cong., 2d Sess. Sec. 641, and especially Sec. 645; S. 462, 105th
Cong., 2d Sess. Secs. 301 and 305 (1998).)
Comment. One of these State housing finance agencies took the
approach that none of the provisions of Subpart J, concerning criminal
background checks, should be applicable to State housing finance
agencies. The agency argued that it entered the program as a financier
of projects, using that skill to get the projects built, and criminal
background checks were not required at that time. The State agency's
skills are not related to the skills necessary for this function, and
owners can get this kind of information in other ways. ``Addition of
this responsibility is a unilateral expansion of a PHA's
responsibilities, not only with respect to the projects whose HAP
contracts the PHA administers, but also with respect to any assisted
housing that exists within the PHA's jurisdiction, whether or not there
is a contractual relationship between the PHA and the owner.''
Response. The rule is not changed, because the statute applies this
provision to all PHAs, including State housing finance agencies that
are administering programs covered under 24 CFR 5.100.
Comment. Section 5.902(e)(1)(i) of the proposed rule permits use of
criminal conviction records for applicant screening for all the covered
programs. However, Sec. 5.902(e)(1)(ii) of the proposed rule explicitly
excludes the Section 8 tenant-based assistance program from using the
records for lease enforcement and eviction. This poses a problem in
persuading owners to participate in the program, according to two
representatives of owners.
Response. This distinction is based on the statute. Section
6(q)(1)(B) of the 1937 Act is limited to obtaining information for
owners of project-based Section 8 projects.
Comment. A legal aid organization pointed out that Sec. 966.4(l)(5)
of the proposed rule provides that public housing leases must provide
that if a ``PHA seeks to terminate the tenancy for criminal activity as
shown by a criminal record, the PHA must provide the tenant with a copy
of the criminal record before a PHA grievance hearing or court trial
concerning the termination of tenancy or eviction, and the tenant must
be given an opportunity to dispute the accuracy and relevance of that
record in the grievance hearing or court trial.'' Section 982.553(d)
contains a similar provision with respect to the Section 8 tenant-based
assistance program. However, Sec. 5.902 of the proposed rule does not
provide an applicant or tenant of a Section 8 project-based project the
right to see and dispute the accuracy and relevance of a criminal
conviction, as required by the statute (section 6(q)(2) of the 1937
Act). Tenants of project-based assistance should have this opportunity
to dispute a record to be used in case of denial of admission, lease
enforcement and/or eviction. The PHA that obtains the records should be
the entity that provides the right to dispute the accuracy or relevance
of the record.
Response. Section 5.903(g) of the proposed rule (Sec. 5.903(f) of
the final rule) provides for the PHA to offer such an opportunity with
respect to sex offender registration information. A
[[Page 28788]]
similar paragraph has been added to the general criminal records
section and to Sec. 966.4(l)(5).
Comment. A PHA stated that Sec. 966.4(l)(5)(iv) of the proposed
rule is inconsistent with Sec. 966.51(a)(2), which permits a PHA to
omit a grievance hearing and proceed directly with court action where
there is a termination of tenancy or eviction that involves threat to
the health, safety, or right to peaceful enjoyment of the premises by
other tenants or employees of the PHA or any drug-related criminal
activity.
Response. Under Sec. 966.51(a)(2), the opportunity to dispute the
accuracy and relevance of the record required by Sec. 966.4(l)(5) may
be provided at the eviction proceeding rather than at a grievance
hearing, if the direct eviction proceeding is authorized.
Comment. A legal aid organization stated that the rule does not
give tenants a chance to dispute the criminal record and its relevancy
before the adverse action is taken, i.e., before the eviction action is
filed in court. The organization bases the right of tenants to have
this opportunity on section 6(q)(2) of the 1937 Act, which requires
that before an adverse action is taken with respect to assistance under
the assisted housing programs on the basis of a criminal record, the
PHA must provide the tenant or applicant a copy of the record an
opportunity to dispute the accuracy and relevance of the record. The
organization recommends changing the rule language allowing the
challenge ``in the grievance hearing or court trial'' to allowing this
challenge ``before the grievance hearing or commencement of court
proceedings.''
Response. Allowing the record to be disputed in the grievance
hearing or the trial, rather than before such events, protects tenants
and applicants sufficiently from ``adverse action'' and comports with
due process. The actual adverse action does not occur until the
completion of the proceeding. HUD declines to add an unnecessary layer
of administrative proceedings.
Comment. A legal aid organization also recommended that the rule
include a statement that the rule does not preempt any state law that
provides stronger protections for the subject of criminal record
inquiries, such as where the opportunity to dispute is stronger.
Response. Congress did not address the issue of preemption, and HUD
declines to generalize.
Comment. A legal services organization and a mental health
organization objected to the language of Sec. 960.204(c)(3) of the
proposed rule requiring a drug abuse treatment facility to provide
information at the request of a PHA. They stated that the law governing
release of such information, the Public Health Service Act (42 U.S.C.
290dd-2) and implementing regulations (42 CFR part 2), authorizes but
does not require the release of information if the patient has signed
an appropriate consent form. They urged HUD to remove this paragraph. A
legal organization representing PHAs took the other side of the
argument. This organization stated that drug treatment facilities
should be required to provide the information requested by PHAs as long
as the request is made consistent with the Public Health Service Act.
Such information is necessary to successful implementation of the
provisions of the 1998 Act.
Response. The 1998 Act does not require release of the information.
The Act states that the facility will not be liable for damages for
releasing information if done consistent with the Public Health Service
Act. The final rule (in Sec. 960.205, which now addresses this matter)
removes the subject paragraph, relying instead on the paragraph that
emphasizes the lack of liability for proper release.
Comment. Section 960.204(c) of the proposed rule should reference
the Public Health Service Act, 42 U.S.C. 290dd-2 and the HHS
implementing regulations, 42 CFR part 2, to make sure that PHAs are
aware of all the relevant law, according to a legal aid organization.
HUD should provide a model form to be used for consent to access
treatment facility records.
Response. The proposed rule did reference the statute in
Sec. 960.204(d)(3). The final rule adds the requested statutory and
regulatory reference to Sec. 960.205(c)(1).
Comment. To conform to section 6(t) of the 1937 Act, there are two
points at which the rule must assure nondiscrimination, a legal aid
organization insists. First, Sec. 960.204(c) must be revised to clarify
that the treatment facility consent form may only be requested of an
applicant if all applicants are asked to sign such a form. Second, the
PHA must make inquiry only about every applicant or about every
applicant that satisfies the statutory criteria related for special
interest. This commenter urged HUD to use the carefully crafted
language of the statute on this point.
Response. The final rule (in Sec. 960.205(c)) clarifies that a PHA
may require an applicant to sign a consent form for obtaining
information from a drug abuse treatment facility only if all applicants
are required to provide such consent.
Comment. Section 960.204(d) of the proposed rule recognizes the
authority of a treatment facility to charge the PHA a fee for providing
information. A legal aid organization suggests that the rule clarify
that there is no statutory basis for the PHA to pass these fees on to
the applicant or resident.
Response. The statute is silent with respect to this issue.
However, historically the costs for obtaining and verifying necessary
information to admit applicants and make subsequent determinations
about their income and rent have been considered an expense of doing
business for the PHA or owner, covered through the administrative fee
or operating subsidy (see Secs. 5.903(d)(4) and 982.553(d)(3)), since
the purpose of the programs is to serve low income families. Therefore,
consistent with current HUD policy, the rule (Sec. 960.205(d)(5))
prohibits PHAs and owners from passing on the cost of obtaining drug
abuse treatment facility records to applicants or residents.
Comment. The question of a PHA's liability for its policy on using
a consent form for applicants to inquire about them at drug abuse
treatment facilities is not addressed in the rule, one PHA stated.
Proposed Sec. 960.204(e) describes the two possible policies that are
permitted. Another paragraph should be added to declare that a PHA will
not be liable for damages based on which policy the PHA adopts.
Response. Section 960.205(d)(4) of the final rule is clear that the
PHA is not liable if the PHA does not request or receive information of
this sort.
L. Management of Records--5.903(g), and 960.205(f)
Comment. PHAs and the FBI commented on management of the records.
(Proposed Sec. 960.204(f)(1)(iii)(B) provides that a drug abuse
treatment facility record be destroyed after the statute of limitations
for a civil action has expired--presumably without a suit having been
filed. Sections 5.902(g) and 5.903(f) of the proposed rule provide more
generally that criminal records must be destroyed once the purpose for
which the record was requested has been accomplished.) PHAs objected to
keeping the record of criminal conviction separate from the applicant
or tenant file and to the requirement that the record be destroyed once
it is no longer needed. Their concern is that they would not have ready
access to the record to defend a denial of admission to a program.
Response. To assure the confidentiality of criminal records, the
final rule (Sec. 5.903(g)) adopts the approach used with respect to
drug
[[Page 28789]]
abuse treatment facility records for criminal records. The records must
be destroyed when the purpose(s) for which the record was requested has
been accomplished and the time has expired for a challenge to the
action being taken without the institution of a court action, or final
disposition of any such litigation has been concluded. We note that a
PHA might use application and consent forms that apply to all of its
housing programs. In that case, the PHA might retain a record until it
had acted on the application with respect to all of its programs before
concluding that all of the purposes for which the record was sought
have been accomplished. This authority in no way prevents a PHA from
disposing of the record after using it with respect to the first
program on which the PHA makes a determination and obtaining more
recent records before making a subsequent determination for another
program with respect to the same applicant.
Comment. Proposed Sec. 960.204(f) addresses when treatment facility
information must be destroyed. A legal aid organization stated that the
statute's provision that an applicant's consent expires 5 days after
the PHA's decision to approve or deny the application, means that the
rule should provide for destruction of the record containing such
information 5 days after the decision to approve the application. The
record should not be allowed to be kept until 5 days after admission to
a unit, since placement on a waiting list might take place
substantially before admission to a unit.
Response. The rule does not delay destruction of the record until
actual admission. Section 960.205(c)(2) of the final rule provides that
the consent form expires automatically after the PHA makes the final
decision to either approve or deny the admission of such person.
However, Sec. 960.205(f) provides that, if the person is denied
admission, the record is to be destroyed in a timely manner after the
statute of limitations for a civil action challenging the denial has
expired. This provision tracks the statute and is necessary to assure
that the PHA has the necessary records to respond to possible
litigation. The final rule expands on this provision so that, if a
court challenge is filed, the rule permits preservation of the record
until final disposition of the action.
Comment. On the other side of the issue, the FBI wanted the actual
criminal record to be sealed. The FBI stated that although the
applicant or tenant's record would have to refer to the existence of a
criminal record concerning a household member, the actual record should
not be maintained in a manner to allow access for unofficial purposes.
Response. In view of the penalties for unauthorized disclosure
provided by section 6(q)(1) of the 1937 Act--misdemeanor conviction,
$5,000 fine, and liability for damages and attorney fees and costs--the
agencies have agreed that it is unnecessary to provide that the record
be sealed.
Comment. A PHA objected to the requirement of proposed
Sec. 960.204(c)(2) that requires that the consent form used to obtain
information from a drug treatment facility expire automatically after
the PHA has made a final decision to approve or disapprove an
application for admission. A single consent form is routinely used for
many agencies, which is often updated annually.
Response. The statute specifies this limitation (found in
Sec. 960.205(c)(2) of the final rule). PHAs can alter the consent forms
they use to address the statutory requirement.
Comment. A legal aid organization recommended that the penalties
for violation of confidentiality obligations be stated clearly in any
section dealing with access to criminal records. The organization also
recommended that PHAs be instructed in the use of NCIC records,
especially the fact that any incident for which there is no final
disposition must be treated as if the subject is innocent.
Response. The final rule includes reference to the penalties for
violation of confidentiality obligations, as well as referencing that
some sources (such as the NCIC) may specify how their records are to be
used. (See revised Sec. 5.903 of the final rule.)
Comment. In connection with use of a criminal conviction record in
judicial eviction proceedings, the FBI wanted the PHA (and not the
owner) to retain the records if the PHA took responsibility for
initiating the proceedings. If the information must be provided to
owners, the FBI recommended establishing a penalty for misuse of the
information similar to that provided for misuse by officers, employees,
and authorized representatives of a PHA. And the consent form used by
owners should reflect the possible use of criminal records in an
eviction action.
Response. The statute provides that ``any person'' who knowingly
and willfully discloses criminal records information obtained under the
authority of section 575 of the 1998 Act to an individual not
authorized by law to receive it is subject to conviction of a
misdemeanor and a fine of up to $5,000. The statute gives examples of
who is covered by the term ``any person'' that relate to PHA agents--
not project owners, but the words do not limit the term's meaning to
PHA agents. The final rule includes project owners in the examples of
entities who may be subject to a criminal penalty. The statute does not
appear to authorize civil liability against any entity other than a
PHA, so the rule reflects that conclusion. The rule is silent about the
content of the owner's consent form.
Comment. Section 960.203(e) of the proposed rule provides that
before denying admission to the public housing program on the basis of
a criminal record, the PHA must provide the ``household'' with a copy
of the record. Section 982.553(d) has a comparable provision, using the
term ``family'' instead of ``household.'' The FBI commented that
dissemination of criminal records is limited to those with
authorization (such as the PHA) and the person who is the ``subject''
of the record, not to other persons in the household.
Response. The final rule reflects HUD's statutory requirement to
provide information to the applicant or tenant to permit the applicant
or tenant to dispute the accuracy or relevance of the record. (See
Secs. 5.903, 5.905, 960.205, 966.4, and 982.553, implementing 42 U.S.C.
1437d(q) and 13663(d).)
Comment. If a PHA currently obtains criminal conviction records,
i.e., without the authority of the new rule, and obtains drug abuse
treatment program records without this new authority, is the PHA free
of the restrictions on records management imposed by the new rule?
Although Sec. 5.903(f)(2) of the proposed rule, concerning sex offender
registration, and Sec. 960.204(f), concerning drug abuse treatment
program information, refer to information received under the authority
of their provisions, Sec. 5.902 of the proposed rule, concerning
criminal conviction records, is not so limited. The final rule should
emphasize that current information collection practices dealing with
all of these subjects may continue unaffected by the new rule.
Response. The rule does not affect other means used by PHAs to
verify suitability for admission. However, HUD cautions PHAs and owners
to handle any information obtained from other records in accordance
with applicable State and Federal privacy laws and with the provisions
of the consent forms signed by applicants.
Comment. A legal services organization urged HUD to emphasize, in
the rule or preamble, that a PHA or owner cannot avoid the records
safeguards of this rule by requiring the
[[Page 28790]]
applicant to obtain the information for them. PHAs and owners should be
directed not to rely on criminal conviction records obtained from
credit reports.
Response. The final rule clarifies that records received directly
from the family are subject to the limitations of this subpart. Since
PHAs and owners may determine that a household member has engaged in
criminal activity without relying on a conviction, HUD is not
prohibiting them from consulting evidence from sources other that those
provided under proposed 24 CFR part 5, subpart I.
M. Miscellaneous
Comment. One criticism of the rule's organization was that any
provision that might involve access to criminal records or lifetime sex
offender registries should include a cross-reference to the sections
stating the requirements for gaining access, and the associated
protections.
Response. The final rule adds these cross-references to 24 CFR part
5, subpart J. (See Secs. 882.518(b)(3), 960.204, 966.4(l)(5),
982.310(c)(3), and 982.553(d).)
Comment. A legal services organization criticized the revision of
Sec. 966.4(l)(2)(i) of the proposed rule on the basis that HUD's
revision eliminates the distinction between serious lease violations
and minor lease violations. The organization stated that this section,
as revised, categorizes as serious ``any violation of a household
obligation under Sec. 966.4(f).'' This commenter recommended that the
paragraph be revised to state that a serious lease violation ``includes
a serious violation of any material term of the lease or a serious
violation of any household obligation described in paragraph (f) of
this section.''
Response. The final rule follows the organization of this section
made by another recently published final rule that addresses admission
and occupancy issues (65 FR 16730-16731, March 29, 2000). That rule
restored the language concerning serious lease violations that this
commenter favored. This final rule now only adds the provisions needed
in this section to implement the provisions of the 1998 Act.
Comment. A representative of PHA interests suggested that the rule
authorize termination of tenancy in two additional cases: (1) where the
PHA attempted to obtain criminal background information before
admitting an applicant but only discovers after admission the facts
that should have disqualified the tenant because of a criminal
conviction; and (2) where the tenant is found to have made one or more
material false statements or omissions or otherwise committed fraud in
connection with any application for assistance or recertification. The
commenter stated that this would afford PHAs a method of avoiding tort
exposure that might result from the continued presence of potentially
dangerous individuals.
Response. In the final rule, these two examples have replaced the
examples relating to criminal activity stated as ``other good cause''
in the proposed rule. (Criminal activity is already specifically listed
as a grounds for termination under paragraphs (l)(2)(ii), referring to
paragraph (l)(5) of Sec. 966.4.)
Comment. A representative of assisted tenants recommended that HUD
endorse the practice of using an informal fact finding committee before
terminating any tenancy. The committee, to be composed of tenants and
staff, could interview residents and neighbors and investigate
allegations of criminal or drug-related incidents, making findings of
fact on which a decision to proceed with termination would be based.
Another residents' representative recommended that the final rule
require all PHAs to establish a panel of residents and PHA staff to set
policy and oversee implementation of the PHA's grievance procedure.
Response. Owners of project-based assistance developments are
encouraged to employ administrative actions to resolve potential
eviction cases before resorting to court action. The rule does not
prescribe particular procedures. PHA grievance procedure operation is
unchanged in this rule.
Comment. A PHA was disappointed that the rule does not address how
to handle domestic violence, which is often related to drug and alcohol
abuse, and for which eviction is often a remedy that would penalize the
victim. The PHA recommended that HUD require tenants who are victims or
perpetrators of domestic violence to counseling within 72 hours of the
occurrence. Only after such counseling is ineffective would eviction
proceedings be initiated.
Response. If a responsible entity has grounds to evict a family
because of domestic violence (for violent criminal activity), then the
entity has the authority to take various actions short of eviction.
Those may include the counseling suggested by the commenter or
permitting continued occupancy on condition that the household member
who has committed the domestic violence is removed from the lease and
vacates the unit.
IV. Findings and Certifications
Paperwork Reduction Act
The information collections contained in Secs. 5.853, 5.854, 5.855,
5.903, 5.905, 882.517, 960.205a, and 982.553 have been approved by the
Office of Management and Budget under the Paperwork Reduction Act of
1995 (44 U.S.C. Chapter 35) and assigned OMB approval number 2577-0232.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection displays
a valid control number.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was made in connection with publication of the proposed rule, in
accordance with HUD regulations in 24 CFR part 50 that implement
section 102(2)(C) of the National Environmental Policy Act of 1969 (42
U.S.C. 4223). The Finding is 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 Regulations Division, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. This final rule does not impose a Federal mandate
that will result in the expenditure by State, local, or tribal
governments in the aggregate, or by the private sector, of $100 million
or more in any one year within the meaning of Unfunded Mandates Reform
Act of 1995.
Executive Order 12866
The Office of Management and Budget (OMB) reviewed this final rule
under Executive Order 12866, Regulatory Planning and Review. OMB
determined that this final rule is a ``significant regulatory action,''
as defined in section 3(f) of the Order (although not economically
significant, as provided in section 3(f)(1) of the Order). Any changes
made to the final 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.
[[Page 28791]]
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) (the RFA), has reviewed and approved this final rule and
in so doing certifies that this rule will not have a significant
economic impact on a substantial number of small entities. The reasons
for HUD's determination were described in some detail in the preamble
to the proposed rule, and they are applicable to this final rule, as
well. No public comments addressed this issue, in response to the
specific request for comment regarding any less burdensome alternatives
to the proposed rule that would meet HUD's objectives as described in
that rule.
Executive Order 13132, Federalism
This final rule does not impose substantial direct compliance costs
on State and local governments or preempt State law within the meaning
of Executive Order 13132.
Catalog
The Catalog of Federal Domestic Assistance numbers for the programs
affected by this interim rule are 14.120, 14.195, 14.850, 14.855 and
14.857.
List of Subjects
24 CFR Part 5
Administrative practices and procedures, Aged, Claims, Drug abuse,
Drug traffic control, Grant programs--housing and community
development, Grant programs--Indians, Individuals with disabilities,
Loan programs--housing and community development, Low and moderate
income housing, Mortgage insurance, Pets, Public housing, Rent
subsidies, Reporting and recordkeeping requirements.
24 CFR Part 200
Administrative practice and procedure, Aged, Civil rights, Grant
programs--housing and community development, Loan programs--housing and
community development, Reporting and recordkeeping requirements.
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 882
Grant programs--housing and community development, Homeless, Lead
poisoning, Manufactured homes, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 884
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements, rural areas.
24 CFR Part 891
Aged, Capital advance programs, Civil rights, Grant programs--
housing and community development, Individuals with disabilities, Loan
programs--housing and community development, Low- and moderate-income
housing, Mental health programs, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 960
Aged, Grant program--housing and community development, Individuals
with disabilities, Public housing.
24 CFR Part 966
Grant programs--housing and community development, Public housing.
24 CFR Part 982
Grant programs--housing and community development, Housing, Rent
subsidies, Reporting and recordkeeping requirements.
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
1. The authority citation for part 5 continues to read as follows:
Authority: 42 U.S.C. 3535(d), unless otherwise noted.
2. Amend Sec. 5.100 by adding the definitions of covered person,
drug, drug-related criminal activity, federally assisted housing,
guest, household, other person under the tenant's control, premises,
and violent criminal activity in alphabetical order:
Sec. 5.100 Definitions.
Covered person, for purposes of 24 CFR 5, subpart I, and parts 966
and 982, means a tenant, any member of the tenant's household, a guest
or another person under the tenant's control.
* * * * *
Drug means a controlled substance as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802).
Drug-related criminal activity means the illegal manufacture, sale,
distribution, or use of a drug, or the possession of a drug with intent
to manufacture, sell, distribute or use the drug.
* * * * *
Federally assisted housing (for purposes of subparts I and J of
this part) means housing assisted under any of the following programs:
(1) Public housing;
(2) Housing receiving project-based or tenant-based assistance
under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
(3) Housing that is assisted under section 202 of the Housing Act
of 1959, as amended by section 801 of the National Affordable Housing
Act (12 U.S.C. 1701q);
(4) Housing that is assisted under section 202 of the Housing Act
of 1959, as such section existed before the enactment of the National
Affordable Housing Act;
(5) Housing that is assisted under section 811 of the National
Affordable Housing Act (42 U.S.C. 8013);
(6) Housing financed by a loan or mortgage insured under section
221(d)(3) of the National Housing Act (12 U.S.C. 1715l(d)(3)) that
bears interest at a rate determined under the proviso of section
221(d)(5) of such Act (12 U.S.C. 1715l(d)(5));
(7) Housing insured, assisted, or held by HUD or by a State or
local agency under section 236 of the National Housing Act (12 U.S.C.
1715z-1); or
(8) Housing assisted by the Rural Development Administration under
section 514 or section 515 of the Housing Act of 1949 (42 U.S.C. 1483,
1484).
* * * * *
Guest, only for purposes of 24 CFR part 5, subparts A and I, and
parts 882, 960, 966, and 982, means a person temporarily staying in the
unit with the consent of a tenant or other member of the household who
has express or implied authority to so consent on behalf of the tenant.
The requirements of parts 966 and 982 apply to a guest as so defined.
* * * * *
Household, for purposes of 24 CFR part 5, subpart I, and parts,
960, 966, 882, and 982, means the family and PHA-approved live-in aide.
* * * * *
Other person under the tenant's control, for the purposes of the
definition of covered person and for parts 5, 882, 966, and 982 means
that the person, although not staying as a guest (as defined in this
section) in the unit, is, or was at the time of the activity in
question, on the premises (as premises is defined in this section)
[[Page 28792]]
because of an invitation from the tenant or other member of the
household who has express or implied authority to so consent on behalf
of the tenant. Absent evidence to the contrary, a person temporarily
and infrequently on the premises solely for legitimate commercial
purposes is not under the tenant's control.
Premises, for purposes of 24 CFR part 5, subpart I, and parts 960
and 966, means the building or complex or development in which the
public or assisted housing dwelling unit is located, including common
areas and grounds.
* * * * *
Violent criminal activity means any criminal activity that has as
one of its elements the use, attempted use, or threatened use of
physical force substantial enough to cause, or be reasonably likely to
cause, serious bodily injury or property damage.
3. Amend part 5 by adding new subparts I and J, to read as follows:
Subpart I--Preventing Crime in Federally Assisted Housing--Denying
Admission and Terminating Tenancy for Criminal Activity or Alcohol
Abuse
General
Sec.
5.850 Which subsidized housing is covered by this subpart?
5.851 What authority do I have to screen applicants and evict
tenants?
5.852 What discretion do I have in screening and eviction actions?
5.853 Definitions.
Denying Admissions
5.854 When must I prohibit admission of individuals who have
engaged in drug-related criminal activity?
5.855 When am I specifically authorized to prohibit admission of
individuals who have engaged in criminal activity?
5.856 When must I prohibit admission of sex offenders?
5.857 When must I prohibit admission of alcohol abusers?
Terminating Tenancy
5.858 When authority do I have to evict drug criminals?
5.859 When am I specifically authorized to evict other criminals?
5.860 When am I specifically authorized to evict alcohol abusers?
5.861 What evidence of criminal activity must I have to evict?
Subpart I--Preventing Crime in Federally Assisted Housing--Denying
Admission and Terminating Tenancy for Criminal Activity or Alcohol
Abuse
General
Sec. 5.850 Which subsidized housing is covered by this subpart?
(a) If you are the owner of federally assisted housing, your
federally assisted housing is covered, except as provided in paragraph
(b) or (c) of this section.
(b) If you are operating public housing, this subpart does not
apply, but similar provisions applicable to public housing units are
found in parts 960 and 966 of this title. If you administer tenant-
based assistance under Section 8 or you are the owner of housing
assisted with tenant-based assistance under Section 8, this subpart
does not apply to you, but similar provisions that do apply are located
in part 982 of this title.
(c) If you own or administer housing assisted by the Rural Housing
Administration under section 514 or section 515 of the Housing Act of
1949, this subpart does not apply to you.
Sec. 5.851 What authority do I have to screen applicants and to evict
tenants?
(a) Screening applicants. You are authorized to screen applicants
for the programs covered by this part. The provisions of this subpart
implement statutory directives that either require or permit you to
take action to deny admission to applicants under certain circumstances
in accordance with established standards, as described in this subpart.
The provisions of this subpart do not constrain your authority to
screen out applicants who you determined are unsuitable under your
standards for admission.
(b) Terminating tenancy. You are authorized to terminate tenancy of
tenants, in accordance with your leases and landlord-tenant law for the
programs covered by this part. The provisions of this subpart implement
statutory directives that either require or permit you to terminate
tenancy under certain circumstances, as provided in 42 U.S.C. 1437f,
1437n, and 13662, in accordance with established standards, as
described in this subpart. You retain authority to terminate tenancy on
any basis that is otherwise authorized.
Sec. 5.852 What discretion do I have in screening and eviction
actions?
(a) General. If the law and regulation permit you to take an action
but do not require action to be taken, you may take or not take the
action in accordance with your standards for admission and eviction.
Consistent with the application of your admission and eviction
standards, you may consider all of the circumstances relevant to a
particular admission or eviction case, such as:
(1) The seriousness of the offending action;
(2) The effect on the community of denial or termination or the
failure of the responsible entity to take such action;
(3) The extent of participation by the leaseholder in the offending
action;
(4) The effect of denial of admission or termination of tenancy on
household members not involved in the offending action;
(5) The demand for assisted housing by families who will adhere to
lease responsibilities;
(6) The extent to which the leaseholder has shown personal
responsibility and taken all reasonable steps to prevent or mitigate
the offending action; and
(7) The effect of the responsible entity's action on the integrity
of the program.
(b) Exclusion of culpable household member. You may require an
applicant (or tenant) to exclude a household member in order to be
admitted to the housing program (or continue to reside in the assisted
unit), where that household member has participated in or been culpable
for action or failure to act that warrants denial (or termination).
(c) Consideration of rehabilitation. (1) In determining whether to
deny admission or terminate tenancy for illegal use of drugs or alcohol
abuse by a household member who is no longer engaged in such behavior,
you may consider whether such household member is participating in or
has successfully completed a supervised drug or alcohol rehabilitation
program, or has otherwise been rehabilitated successfully (42 U.S.C.
13661). For this purpose, you may require the applicant or tenant to
submit evidence of the household member's current participation in, or
successful completion of, a supervised drug or alcohol rehabilitation
program or evidence of otherwise having been rehabilitated
successfully.
(2) If rehabilitation is not an element of the eligibility
determination (see Sec. 5.854(a)(1) for the case where it must be
considered), you may choose not to consider whether the person has been
rehabilitated.
(d) Length of period of mandatory prohibition on admission. If a
statute requires that you prohibit admission of persons for a
prescribed period of time after some disqualifying behavior or
[[Page 28793]]
event, you may apply that prohibition for a longer period of time.
(e) Nondiscrimination limitation. Your admission and eviction
actions must be consistent with fair housing and equal opportunity
provisions of Sec. 5.105.
Sec. 5.853 Definitions.
(a) Terms found elsewhere. The following terms are defined in
subpart A of this part: 1937 Act, covered person, drug, drug-related
criminal activity, federally assisted housing, guest, household, HUD,
other person under the tenant's control, premises, public housing,
public housing agency (PHA), Section 8, violent criminal activity.
(b) Additional terms used in this part are as follows.
Currently engaging in. With respect to behavior such as illegal use
of a drug, other drug-related criminal activity, or other criminal
activity, currently engaging in means that the individual has engaged
in the behavior recently enough to justify a reasonable belief that the
individual's behavior is current.
Owner. The owner of federally assisted housing.
Responsible entity. For the Section 8 project-based certificate or
project-based voucher program (part 983 of this title) and the Section
8 moderate rehabilitation program (part 882 of this title), responsible
entity means the PHA administering the program under an Annual
Contributions Contract with HUD. For all other federally assisted
housing, the responsible entity means the owner of the housing.
Denying Admissions
Sec. 5.854 When must I prohibit admission of individuals who have
engaged in drug-related criminal activity?
(a) You must prohibit admission to your federally assisted housing
of an applicant for three years from the date of eviction if any
household member has been evicted from federally assisted housing for
drug-related criminal activity. However, you may admit the household
if:
(1) The evicted household member who engaged in drug-related
criminal activity has successfully completed an approved supervised
drug rehabilitation program; or
(2) The circumstances leading to the eviction no longer exist (for
example, the criminal household member has died or is imprisoned).
(b) You must establish standards that prohibit admission of a
household to federally assisted housing if:
(1) You determine that any household member is currently engaging
in illegal use of a drug; or
(2) You determine that you have reasonable cause to believe that a
household member's illegal use or a pattern of illegal use of a drug
may interfere with the health, safety, or right to peaceful enjoyment
of the premises by other residents.
Sec. 5.855 When am I specifically authorized to prohibit admission of
individuals who have engaged in criminal activity?
(a) You may prohibit admission of a household to federally assisted
housing under your standards if you determine that any household member
is currently engaging in, or has engaged in during a reasonable time
before the admission decision:
(1) Drug-related criminal activity;
(2) Violent criminal activity;
(3) Other criminal activity that would threaten the health, safety,
or right to peaceful enjoyment of the premises by other residents; or
(4) Other criminal activity that would threaten the health or
safety of the PHA or owner or any employee, contractor, subcontractor
or agent of the PHA or owner who is involved in the housing operations.
(b) You may establish a period before the admission decision during
which an applicant must not have engaged in the activities specified in
paragraph (a) of this section (reasonable time).
(c) If you previously denied admission to an applicant because of a
determination concerning a member of the household under paragraph (a)
of this section, you may reconsider the applicant if you have
sufficient evidence that the members of the household are not currently
engaged in, and have not engaged in, such criminal activity during a
reasonable period, determined by you, before the admission decision.
(1) You would have sufficient evidence if the household member
submitted a certification that she or he is not currently engaged in
and has not engaged in such criminal activity during the specified
period and provided supporting information from such sources as a
probation officer, a landlord, neighbors, social service agency workers
and criminal records, which you verified. (See subpart J of this part
for one method of checking criminal records.)
(2) For purposes of this section, a household member is currently
engaged in the criminal activity if the person has engaged in the
behavior recently enough to justify a reasonable belief that the
behavior is current.
Sec. 5.856 When must I prohibit admission of sex offenders?
You must establish standards that prohibit admission to federally
assisted housing if any member of the household is subject to a
lifetime registration requirement under a State sex offender
registration program. In the screening of applicants, you must perform
necessary criminal history background checks in the State where the
housing is located and in other States where the household members are
known to have resided. (See Sec. 5.905.)
Sec. 5.857 When must I prohibit admission of alcohol abusers?
You must establish standards that prohibit admission to federally
assisted housing if you determine you have reasonable cause to believe
that a household member's abuse or pattern of abuse of alcohol
interferes with the health, safety, or right to peaceful enjoyment of
the premises by other residents.
Terminating Tenancy
Sec. 5.858 What authority do I have to evict drug criminals?
The lease must provide that drug-related criminal activity engaged
in on or near the premises by any tenant, household member, or guest,
and any such activity engaged in on the premises by any other person
under the tenant's control, is grounds for you to terminate tenancy. In
addition, the lease must allow you to evict a family when you determine
that a household member is illegally using a drug or when you determine
that a pattern of illegal use of a drug interferes with the health,
safety, or right to peaceful enjoyment of the premises by other
residents.
Sec. 5.859 When am I specifically authorized to evict other criminals?
(a) Threat to other residents. The lease must provide that the
owner may terminate tenancy for any of the following types of criminal
activity by a covered person:
(1) Any criminal activity that threatens the health, safety, or
right to peaceful enjoyment of the premises by other residents
(including property management staff residing on the premises); or
(2) 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.
(b) Fugitive felon or parole violator. The lease must provide that
you may terminate the tenancy during the term of the lease if a tenant
is:
[[Page 28794]]
(1) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(2) Violating a condition of probation or parole imposed under
Federal or State law.
Sec. 5.860 When am I specifically authorized to evict alcohol abusers?
The lease must provide that you may terminate the tenancy if you
determine that a household member's abuse or pattern of abuse of
alcohol threatens the health, safety, or right to peaceful enjoyment of
the premises by other residents.
Sec. 5.861 What evidence of criminal activity must I have to evict?
You may terminate tenancy and evict the tenant through judicial
action for criminal activity by a covered person in accordance with
this subpart if you determine that the covered person has engaged in
the criminal activity, regardless of whether the covered person has
been arrested or convicted for such activity and without satisfying a
criminal conviction standard of proof of the activity.
Subpart J--Access to Criminal Records and Information
Sec.
5.901 To what criminal records and searches does this subpart
apply?
5.902 Definitions.
5.903 What special authority is there to obtain access to criminal
records?
5.905 What special authority is there to obtain access to sex
offender registration information?
Subpart J
Access to Criminal Records and Information
Sec. 5.901 To what criminal records and searches does this subpart
apply?
(a) General criminal records searches. This subpart applies to
criminal conviction background checks by PHAs that administer the
Section 8 and public housing programs when they obtain criminal
conviction records, under the authority of section 6(q) of the 1937 Act
(42 U.S.C. 1437d(q)), from a law enforcement agency to prevent
admission of criminals to public housing and Section 8 housing and to
assist in lease enforcement and eviction.
(b) Sex offender registration records searches. This subpart
applies to PHAs that administer the Section 8 and public housing
programs when they obtain sex offender registration information from
State and local agencies, under the authority of 42 U.S.C. 13663, to
prevent admission of dangerous sex offenders to federally assisted
housing.
(c) Excluded records searches. The provisions of this subpart do
not apply to criminal conviction information or sex offender
information searches by a PHA or others of information from law
enforcement agencies or other sources other than as provided under this
subpart.
Sec. 5.902 Definitions.
(a) Terms found elsewhere. The following terms used in this subpart
are defined in subpart A of this part: 1937 Act, drug, federally
assisted housing, household, HUD, public housing, public housing agency
(PHA), Section 8.
(b) Additional terms used in this subpart are as follows:
Adult. A person who is 18 years of age or older, or who has been
convicted of a crime as an adult under any Federal, State, or tribal
law.
Covered housing. Public housing, project-based assistance under
section 8 (including new construction and substantial rehabilitation
projects), and tenant-based assistance under section 8.
Law enforcement agency. The National Crime Information Center
(NCIC), police departments and other law enforcement agencies that hold
criminal conviction records.
Owner. The owner of federally assisted housing.
Responsible entity. For the public housing program, the Section 8
tenant-based assistance program (part 982 of this title), the Section 8
project-based certificate or project-based voucher program (part 983 of
this title), and the Section 8 moderate rehabilitation program (part
882 of this title), responsible entity means the PHA administering the
program under an Annual Contributions Contract with HUD. For all other
Section 8 programs, responsible entity means the Section 8 owner.
Sec. 5.903 What special authority is there to obtain access to
criminal records?
(a) Authority. If you are a PHA that administers the Section 8
program and/or the public housing program, this section authorizes you
to obtain criminal conviction records from a law enforcement agency, as
defined in Sec. 5.902. You may use the criminal conviction records that
you obtain from a law enforcement agency under the authority of this
section to screen applicants for admission to covered housing programs
and for lease enforcement or eviction of families residing in public
housing or receiving Section 8 project-based assistance.
(b) Consent for release of criminal conviction records. (1) In
order to obtain access to records under this section, as a responsible
entity you must require every applicant family to submit a consent form
signed by each adult household member.
(2) By execution of the consent form, an adult household member
consents that:
(i) Any law enforcement agency may release criminal conviction
records concerning the household member to a PHA in accordance with
this section;
(ii) The PHA may receive the criminal conviction records from a law
enforcement agency, and may use the records in accordance with this
section.
(c) Procedure for PHA. (1) When the law enforcement agency receives
your request, the law enforcement agency must promptly release to you a
certified copy of any criminal conviction records concerning the
household member in the possession or control of the law enforcement
agency. NCIC records must be provided in accordance with NCIC
procedures.
(2) The law enforcement agency may charge you a reasonable fee for
releasing criminal conviction records.
(d) Owner access to criminal records.--(1) General. (i) If an owner
submits a request to the PHA for criminal records concerning an adult
member of an applicant or resident household, in accordance with the
provisions of paragraph (d) of this section, the PHA must request the
criminal conviction records from the appropriate law enforcement agency
or agencies, as determined by the PHA.
(ii) If the PHA receives criminal conviction records requested by
an owner, the PHA must determine whether criminal action by a household
member, as shown by such criminal conviction records, may be a basis
for applicant screening, lease enforcement or eviction, as applicable
in accordance with HUD regulations and the owner criteria.
(iii) The PHA must notify the owner whether the PHA has received
criminal conviction records concerning the household member, and of its
determination whether such criminal conviction records may be a basis
for applicant screening, lease enforcement or eviction. However, except
as provided in paragraph (e)(2)(ii) of this section, the PHA must not
disclose the household member's criminal conviction record or the
content of that record to the owner.
(2) Screening. If you are an owner of covered housing, you may
request that the PHA in the jurisdiction of the property obtain
criminal conviction
[[Page 28795]]
records of an adult household member from a law enforcement agency on
your behalf for the purpose of screening applicants.
(i) Your request must include a copy of the consent form, signed by
the household member.
(ii) Your request must include your standards for prohibiting
admission of drug criminals in accordance with Sec. 5.854, and for
prohibiting admission of other criminals in accordance with Sec. 5.855.
(3) Eviction or lease enforcement. If you are an owner of a unit
with Section 8 project-based assistance, you may request that the PHA
in the location of the project obtain criminal conviction records of a
household member from an appropriate law enforcement agency on your
behalf in connection with lease enforcement or eviction.
(i) Your request must include a copy of the consent form, signed by
the household member.
(ii) If you intend to use the PHA determination regarding any such
criminal conviction records in connection with eviction, your request
must include your standards for evicting drug criminals in accordance
with Sec. 5.857, and for evicting other criminals in accordance with
Sec. 5.858.
(iii) If you intend to use the PHA determination regarding any such
criminal conviction records for lease enforcement other than eviction,
your request must include your standards for lease enforcement because
of criminal activity by members of a household.
(4) Fees. If an owner requests a PHA to obtain criminal conviction
records in accordance with this section, the PHA may charge the owner
reasonable fees for making the request on behalf of the owner and for
taking other actions for the owner. The PHA may require the owner to
reimburse costs incurred by the PHA, including reimbursement of any
fees charged to the PHA by the law enforcement agency, the PHA's own
related staff and administrative costs. The owner may not pass along to
the applicant or tenant the costs of a criminal records check.
(e) Permitted use and disclosure of criminal conviction records
received by PHA--(1) Use of records. Criminal conviction records
received by a PHA from a law enforcement agency in accordance with this
section may only be used for the following purposes:
(i) Applicant screening. (A) PHA screening of applicants for
admission to public housing (part 960 of this title);
(B) PHA screening of applicants for admission to the Housing Choice
Voucher Program (section 8 tenant-based assistance) (part 982 of this
title);
(C) PHA screening of applicants for admission to the Section 8
moderate rehabilitation program (part 882 of this title); or the
Section 8 project-based certificate or project-based voucher program
(part 983 of this title); or
(D) PHA screening concerning criminal conviction of applicants for
admission to Section 8 project-based assistance, at the request of the
owner. (For requirements governing use of criminal conviction records
obtained by a PHA at the request of a Section 8 owner under this
section, see paragraph (d) of this section.)
(ii) Lease enforcement and eviction. (A) PHA enforcement of public
housing leases and PHA eviction of public housing residents;
(B) Enforcement of leases by a Section 8 project owner and eviction
of residents by a Section 8 project owner. (However, criminal
conviction records received by a PHA from a law enforcement agency
under this section may not be used for lease enforcement or eviction of
residents receiving Section 8 tenant-based assistance.)
(2) PHA disclosure of records. (i) A PHA may disclose the criminal
conviction records which the PHA receives from a law enforcement agency
only as follows:
(A) To officers or employees of the PHA, or to authorized
representatives of the PHA who have a job-related need to have access
to the information. For example, if the PHA is seeking to evict a
public housing tenant on the basis of criminal activity as shown in
criminal conviction records provided by a law enforcement agency, the
records may be disclosed to PHA employees performing functions related
to the eviction, or to a PHA hearing officer conducting an
administrative grievance hearing concerning the proposed eviction.
(B) To the owner for use in connection with judicial eviction
proceedings by the owner to the extent necessary in connection with a
judicial eviction proceeding. For example, criminal conviction records
may be included in pleadings or other papers filed in an eviction
action, may be disclosed to parties to the action or the court, and may
be filed in court or offered as evidence.
(ii) This disclosure may be made only if the following conditions
are satisfied:
(A) If the PHA has determined that criminal activity by the
household member as shown by such records received from a law
enforcement agency may be a basis for eviction from a Section 8 unit;
and
(B) If the owner certifies in writing that it will use the criminal
conviction records only for the purpose and only to the extent
necessary to seek eviction in a judicial proceeding of a Section 8
tenant based on the criminal activity by the household member that is
described in the criminal conviction records.
(iii) The PHA may rely on an owner's certification that the
criminal record is necessary to proceed with a judicial eviction to
evict the tenant based on criminal activity of the identified household
member, as shown in the criminal conviction record.
(iv) Upon disclosure as necessary in connection with judicial
eviction proceedings, the PHA is not responsible for controlling access
to or knowledge of such records after such disclosure.
(f) Opportunity to dispute. If a PHA obtains criminal record
information from a State or local agency under this section showing
that a household member has been convicted of a crime relevant to
applicant screening, lease enforcement or eviction, the PHA must notify
the household of the proposed action to be based on the information and
must provide the subject of the record and the applicant or tenant a
copy of such information, and an opportunity to dispute the accuracy
and relevance of the information. This opportunity must be provided
before a denial of admission, eviction or lease enforcement action on
the basis of such information.
(g) Records management. Consistent with the limitations on
disclosure of records in paragraph (e) of this section, the PHA must
establish and implement a system of records management that ensures
that any criminal record received by the PHA from a law enforcement
agency is:
(1) Maintained confidentially;
(2) Not misused or improperly disseminated; and
(3) Destroyed, once the purpose(s) for which the record was
requested has been accomplished, including expiration of the period for
filing a challenge to the PHA action without institution of a challenge
or final disposition of any such litigation.
(h) Penalties for improper release of information.--(1) Criminal
penalty. Conviction for a misdemeanor and imposition of a penalty of
not more than $5,000 is the potential for:
(i) Any person, including an officer, employee, or authorized
representative of any PHA or of any project owner, who knowingly and
willfully requests or obtains any information concerning an applicant
for, or tenant of, covered housing assistance under the authority of
this section under false pretenses; or
(ii) Any person, including an officer, employee, or authorized
representative of any PHA or a project owner, who
[[Page 28796]]
knowingly and willfully discloses any such information in any manner to
any individual not entitled under any law to receive the information.
(2) Civil liability. (i) A PHA may be held liable to any applicant
for, or tenant of, covered housing assistance affected by either of the
following:
(A) A negligent or knowing disclosure of criminal records
information obtained under the authority of this section about such
person by an officer, employee, or authorized representative of the PHA
if the disclosure is not authorized by this section; or
(B) Any other negligent or knowing action that is inconsistent with
this section.
(ii) An applicant for, or tenant of, covered housing assistance may
seek relief against a PHA in these circumstances by bringing a civil
action for damages and such other relief as may be appropriate against
the PHA responsible for such unauthorized action. The United States
district court in which the affected applicant or tenant resides, in
which the unauthorized action occurred, or in which the officer,
employee, or representative alleged to be responsible resides, has
jurisdiction. Appropriate relief may include reasonable attorney's fees
and other litigation costs.
Sec. 5.905 What special authority is there to obtain access to sex
offender registration information?
(a) PHA obligation to obtain sex offender registration information.
(1) A PHA that administers a Section 8 or public housing program under
an Annual Contributions Contract with HUD must carry out background
checks necessary to determine whether a member of a household applying
for admission to any federally assisted housing program is subject to a
lifetime sex offender registration requirement under a State sex
offender registration program. This check must be carried out with
respect to the State in which the housing is located and with respect
to States where members of the applicant household are known to have
resided.
(2) If the PHA requests such information from any State or local
agency responsible for the collection or maintenance of such
information, the State or local agency must promptly provide the PHA
such information in its possession or control.
(3) The State or local agency may charge a reasonable fee for
providing the information.
(b) Owner's request for sex offender registration information.--(1)
General. An owner of federally assisted housing that is located in the
jurisdiction of a PHA that administers a Section 8 or public housing
program under an Annual Contributions Contract with HUD may request
that the PHA obtain information necessary to determine whether a
household member is subject to a lifetime registration requirement
under a State sex offender registration requirement.
(2) Procedure. If the request is made in accordance with the
provisions of paragraph (b) of this section:
(i) The PHA must request the information from a State or local
agency;
(ii) The State or local agency must promptly provide the PHA such
information in its possession or control;
(iii) The PHA must determine whether such information may be a
basis for applicant screening, lease enforcement or eviction, based on
the criteria used by the owner as specified in the owner's request, and
inform the owner of the determination.
(iv) The PHA must notify the owner of its determination whether sex
offender registration information received by the PHA under this
section concerning a household member may be a basis for applicant
screening, lease enforcement or eviction in accordance with HUD
requirements and the criteria used by the owner.
(3) Contents of request. As the owner, your request must specify
whether you are asking the PHA to obtain the sex offender registration
information concerning the household member for applicant screening,
for lease enforcement, or for eviction and include the following
information:
(i) Addresses or other information about where members of the
household are known to have lived.
(ii) If you intend to use the PHA determination regarding any such
sex offender registration information for applicant screening, your
request must include your standards in accordance with Sec. 5.855(c)
for prohibiting admission of persons subject to a lifetime sex offender
registration requirement.
(iii) If you intend to use the PHA determination regarding any such
sex offender registration information for eviction, your request must
include your standards for evicting persons subject to a lifetime
registration requirement in accordance with Sec. 5.858.
(iv) If you intend to use the PHA determination regarding any such
sex offender registration information for lease enforcement other than
eviction, your request must include your standards for lease
enforcement because of criminal activity by members of a household.
(4) PHA disclosure of records. The PHA must not disclose to the
owner any sex offender registration information obtained by the PHA
under this section.
(5) Fees. If an owner asks a PHA to obtain sex offender
registration information concerning a household member in accordance
with this section, the PHA may charge the owner reasonable fees for
making the request on behalf of the owner and for taking other actions
for the owner. The PHA may require the owner to reimburse costs
incurred by the PHA, including reimbursement of any fees charged to the
PHA by a State or local agency for releasing the information, the PHA's
own related staff and administrative costs. The owner may not pass
along to the applicant or tenant the costs of a sex offender
registration records check.
(c) Records management. (1) The PHA must establish and implement a
system of records management that ensures that any sex offender
registration information record received by the PHA from a State or
local agency under this section is:
(i) Maintained confidentially;
(ii) Not misused or improperly disseminated; and
(iii) Destroyed, once the purpose for which the record was
requested has been accomplished, including expiration of the period for
filing a challenge to the PHA action without institution of a challenge
or final disposition of any such litigation.
(2) The records management requirements do not apply to information
that is public information, or is obtained by a PHA other than under
this section.
(d) Opportunity to dispute. If a PHA obtains sex offender
registration information from a State or local agency under paragraph
(a) of this section showing that a household member is subject to a
lifetime sex offender registration requirement, the PHA must notify the
household of the proposed action to be based on the information and
must provide the subject of the record, and the applicant or tenant,
with a copy of such information, and an opportunity to dispute the
accuracy and relevance of the information. This opportunity must be
provided before a denial of admission, eviction or lease enforcement
action on the basis of such information.
PART 200--INTRODUCTION TO FHA PROGRAMS
4. The authority citation for part 200 continues to read as
follows:
Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).
[[Page 28797]]
5. Add a new Sec. 200.37 to read as follows:
Sec. 200.37 Preventing crime in federally assisted housing.
See part 5, subparts I and J of this title, for provisions
concerning preventing crime in federally assisted housing, including
programs administered under section 236 and under sections 221(d)(3)
and 221(d)(5) of the National Housing Act.
PART 247--EVICTIONS FROM SUBSIDIZED AND HUD-OWNED PROJECTS
6. The authority citation for part 247 continues 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).
7. In Sec. 247.2, revise the last sentence in the definition of
``subsidized project'' to read as follows:
Sec. 247.2 Definitions.
* * * * *
Subsidized project. * * * For purposes of this part, subsidized
project also includes those units in a housing project that receive the
benefit of:
(1) Rental subsidy in the form of rent supplement payments under
section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C.
1701s); or
(2) Housing assistance payments for project-based assistance under
Section 8 of the 1937 Act (42 U.S.C. 1437f). However, this part is not
applicable to Section 8 project-based assistance under parts 880, 881,
883 and 884 of this title (except as specifically provided in those
parts).
8. In Sec. 247.3, revise paragraph (a)(3) to read as follows:
Sec. 247.3 Entitlement of tenants to occupancy.
(a) * * *
(3) Criminal activity by a covered person in accordance with
sections 5.858 and 5.859, or alcohol abuse by a covered person in
accordance with section 5.860. If necessary, criminal records can be
obtained for lease enforcement purposes under section 5.903(d)(3).
* * * * *
PART 880--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR NEW
CONSTRUCTION
9. The authority citation for part 880 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.
10. In Sec. 880.607, revise paragraph (b)(1)(iii) to read as
follows:
Sec. 880.607 Termination of tenancy and modification of lease.
* * * * *
(b) * * *
(1) * * *
(iii) Criminal activity by a covered person in accordance with
sections 5.858 and 5.859, or alcohol abuse by a covered person in
accordance with section 5.860. If necessary, criminal records can be
obtained for lease enforcement purposes under section 5.903(d)(3).
* * * * *
PART 882--SECTION 8 MODERATE REHABILITATION PROGRAMS
11. The authority citation for part 882 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
12. In Sec. 882.102, amend paragraph (b) by removing the
definitions of the terms drug-related criminal activity, drug-
trafficking, and violent criminal activity, and revise paragraph (a) to
read as follows:
Sec. 882.102 Definitions.
(a) Terms found elsewhere. The following terms are defined in part
5, subpart A of this title: 1937 Act, covered person, drug, drug-
related criminal activity, federally assisted housing, guest,
household, HUD, MSA, other person under the tenant's control, public
housing agency (PHA), Section 8, and violent criminal activity.
* * * * *
13. In Sec. 882.511, amend paragraph (a) by adding after the
heading a paragraph designation (1), and by adding a new paragraph
(a)(2).
Sec. 882.511 Lease and termination of tenancy.
(a) * * *
(2) The lease must provide that drug-related criminal activity
engaged in on or near the premises by any tenant, household member, or
guest, and any such activity engaged in on the premises by any other
person under the tenant's control is grounds for the owner to terminate
tenancy. In addition, the lease must provide that the owner may
terminate the tenancy of a family when the owner determines that a
household member is illegally using a drug or when the owner determines
that a pattern of illegal use of a drug interferes with the health,
safety, or right to peaceful enjoyment of the premises by other
residents.
* * * * *
Sec. 882.514 [Amended]
14. In Sec. 882.514, remove paragraph (a)(2) and redesignate
paragraph (a)(3) as paragraph (a)(2), and remove paragraph (g).
15. Add Sec. 882.518 to read as follows:
Sec. 882.518 Denial of admission and termination of assistance for
criminals and alcohol abusers.
(a) Requirement to deny admission.--(1) Prohibiting admission of
drug criminals. (i) The PHA must prohibit admission to the program of
an applicant for three years from the date of termination of tenancy if
any household member's federally assisted housing tenancy has been
terminated for drug-related criminal activity. However, the PHA may
admit the household if the PHA determines:
(A) The household member who engaged in drug-related criminal
activity and whose tenancy was terminated has successfully completed an
approved supervised drug rehabilitation program, or
(B) The circumstances leading to the termination of tenancy no
longer exist (for example, the criminal household member has died or is
imprisoned).
(ii) The PHA must establish standards that permanently prohibit
admission to the program if any household member has ever been
convicted of drug-related criminal activity for manufacture or
production of methamphetamine on the premises of federally assisted
housing.
(iii) The PHA must establish standards that prohibit admission of a
household to the program if the PHA determines that any household
member is currently engaging in illegal use of a drug or that it has
reasonable cause to believe that a household member's pattern of
illegal use of a drug, as defined in Sec. 5.100 of this title, may
threaten the health, safety, or right to peaceful enjoyment of the
premises by other residents.
(2) Prohibiting admission of sex offenders. The PHA must establish
standards that prohibit admission to the program if any member of the
household is subject to a lifetime registration requirement under a
State sex offender registration program. In this screening of
applicants, the PHA must perform criminal history background checks
necessary to determine whether any household member is subject to a
lifetime sex offender registration requirement in the State where the
housing is located and in other States where household members are
known to have resided.
(b) Authority to deny admission.--(1) Prohibiting admission of
other criminals. The PHA may prohibit admission of a household to the
program under standards established by the PHA if the PHA determines
that any
[[Page 28798]]
household member is currently engaged in or has engaged in during a
reasonable time before the admission decision:
(i) Drug-related criminal activity;
(ii) Violent criminal activity;
(iii) Other criminal activity which may threaten the health,
safety, or right to peaceful enjoyment of the premises by other
residents;
(iv) Other criminal activity which may threaten the health or
safety of the owner or any employee, contractor, subcontractor or agent
of the owner who is involved in the owner's housing operations.
(2) Reasonable time. The PHA may establish a period before the
admission decision during which an applicant must not have engaged in
the activities specified in paragraph (b)(1) of this section
``reasonable time''.
(3) Sufficient evidence. If the PHA has denied admission to an
applicant because a member of the household engaged in criminal
activity in accordance with paragraph (b)(1) of this section, the PHA
may reconsider the applicant if the PHA has sufficient evidence that
the members of the household are not currently engaged in, and have not
engaged in criminal activity during a reasonable period, as determined
by the PHA, before the admission decision.
(i) The PHA would have ``sufficient evidence'' if the household
member submitted a certification that she or he is not currently
engaged in and has not engaged in such criminal activity during the
specified period and provided supporting information from such sources
as a probation officer, a landlord, neighbors, social service agency
workers and criminal records, which the PHA verified.
(ii) For purposes of this section, a household member is
``currently engaged in'' criminal activity if the person has engaged in
the behavior recently enough to justify a reasonable belief that the
behavior is current.
(4) Prohibiting admission of alcohol abusers. The PHA must
establish standards that prohibit admission to the program if the PHA
determines that it has reasonable cause to believe that a household
member's abuse or pattern of abuse of alcohol may threaten the health,
safety, or right to peaceful enjoyment of the premises by other
residents.
(c) Terminating assistance.--(1) Terminating assistance for drug
criminals. (i) The PHA may terminate assistance for drug-related
criminal activity engaged in on or near the premises by any tenant,
household member, or guest, and any such activity engaged in on the
premises by any other person under the tenant's control. In addition,
the PHA may terminate assistance if the PHA determines that a household
member is illegally using a drug or when the PHA determines that a
pattern of illegal use of a drug interferes with the health, safety, or
right to peaceful enjoyment of the premises by other residents.
(ii) The PHA must immediately terminate assistance for a family
under the program if the PHA determines that any member of the
household has ever been convicted of drug-related criminal activity for
manufacture or production of methamphetamine on the premises of
federally assisted housing.
(2) Terminating assistance for other criminals. (i) The PHA must
establish standards that allow the PHA to terminate assistance for a
family if the PHA determines that any household member is engaged in
criminal activity that threatens the health, safety, or right of
peaceful enjoyment of the premises by other residents or by persons
residing in the immediate vicinity of the premises.
(ii) The PHA may terminate assistance for a family if the PHA
determines that a member of the household is:
(A) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(B) Violating a condition of probation or parole imposed under
Federal or State law.
(3) Evidence of criminal activity.
(i) The PHA may terminate assistance for criminal activity in
accordance with this section if the PHA determines, based on a
preponderance of the evidence, that a covered person has engaged in the
criminal activity, regardless of whether the covered person has been
arrested or convicted for such activity.
(ii) See part 5, subpart J, of this title for provisions concerning
access to criminal records.
(4) Terminating assistance for alcohol abusers. The PHA must
establish standards that allow termination of assistance for a family
if the PHA determines that a household member's abuse or pattern of
abuse of alcohol threatens the health, safety, or right to peaceful
enjoyment of the premises by other residents.
PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW
CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING
PROJECTS
16. The authority citation for part 884 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
17. In Sec. 884.216, revise paragraph (b) to read as follows:
Sec. 884.216 Termination of tenancy.
* * * * *
(b) Termination of tenancy for criminal activity by a covered
person is subject to 24 CFR 5.858 and 5.859, and termination of tenancy
for alcohol abuse by a covered person is subject to 24 CFR 5.860.
PART 891--SUPPORTIVE HOUSING FOR THE ELDERLY AND PERSONS WITH
DISABILITIES
18. The authority citation for part 891 continues to read as
follows:
Authority: 12 U.S.C. 1701q; 42 U.S.C. 1437f, 3535(d), and 8013.
19. Revise Sec. 891.430 to read as follows:
Sec. 891.430 Denial of admission, termination of tenancy, and
modification of lease.
(a) The provisions of part 5, subpart I, of this title apply to
Section 202 and Section 811 capital advance projects.
(b) The provisions of part 247 of this title apply to all decisions
by an owner to terminate the tenancy or modify the lease of a household
residing in a unit (or residential space in a group home).
20. Revise Sec. 891.630 to read as follows:
Sec. 891.630 Denial of admission, termination of tenancy, and
modification of lease.
(a) The provisions of part 5, subpart I, of this title apply to
Section 202 direct loan projects.
(b) The provisions of part 247 of this title apply to all decisions
by a Borrower to terminate the tenancy or modify the lease of a family
residing in a unit.
21. Revise Sec. 891.770 to read as follows:
Sec. 891.770 Denial of admission, termination of tenancy, and
modification of lease.
(a) The provisions of part 5, subpart I, of this title apply to
Section 202 direct loan projects with Section 162 assistance for
disabled families.
(b) The provisions of part 247 of this title apply to all decisions
by a Borrower to terminate the tenancy or modify the lease of a family
residing in a unit (or residential space in a group home).
[[Page 28799]]
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
22. The authority citation for part 960 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, 1437z-3, and
3535(d).
23. In Sec. 960.102, paragraph (a)(1) is revised to read as
follows:
Sec. 960.102 Definitions.
(a) Definitions found elsewhere. (1) General definitions. The
following terms are defined in part 5, subpart A of this title: 1937
Act, drug, drug-related criminal activity, federally assisted housing,
guest, household, HUD, MSA, premises, public housing, public housing
agency (PHA), Section 8, violent criminal activity.
* * * * *
24. Subpart B of part 960 is revised to read as follows:
Subpart B--Admission
960.200 Purpose.
960.201 Eligibility.
960.202 Tenant selection policies.
960.203 Standards for PHA tenant selection criteria.
960.204 Denial of admission for criminal activity or drug abuse by
household members.
960.205 Drug use by applicants: obtaining information from drug
treatment facility.
960.206 Waiting list: Local preferences in admission to public
housing program.
960.208 Notification to applicants.
Sec. 960.200 Purpose.
(a) This subpart states HUD eligibility and selection requirements
for admission to public housing.
(b) See also related HUD regulations in this title concerning these
subjects:
(1) 1937 Act definitions: part 5, subpart D;
(2) Restrictions on assistance to noncitizens: part 5, subpart E;
(3) Family income and family payment: part 5, subpart F;
(4) Public housing agency plans: part 903;
(5) Rent and reexamination: part 960, subpart C;
(6) Mixed population developments: part 960, subpart D;
(7) Occupancy by over-income families or police officers: part 960,
subpart E.
Sec. 960.201 Eligibility.
(a) Who is eligible? (1) Basic eligibility. An applicant must meet
all eligibility requirements in order to receive housing assistance. At
a minimum, the applicant must be a family, as defined in Sec. 5.403 of
this title, and must be income-eligible, as described in this section.
Such eligible applicants include single persons.
(2) Low income limit. No family other than a low income family is
eligible for admission to a PHA's public housing program.
(b) Income used for eligibility and targeting. Family annual income
(see Sec. 5.609) is used both for determination of income eligibility
under paragraph (a) and for PHA income targeting under Sec. 960.202
(c) Reporting. The PHA must comply with HUD-prescribed reporting
requirements that will permit HUD to maintain the data, as determined
by HUD, necessary to monitor compliance with income eligibility and
targeting requirement.
Sec. 960.202 Tenant selection policies.
(a) Selection policies, generally. (1) The PHA shall establish and
adopt written policies for admission of tenants.
(2) These policies shall provide for and include the following:
(i) Targeting admissions to extremely low income families as
provided in paragraph (b) of this section.
(ii) Deconcentration of poverty and income-mixing in accordance
with the PHA Plan regulations (see 24 CFR part 903).
(iii) Precluding admission of applicants whose habits and practices
reasonably may be expected to have a detrimental effect on the
residents or the project environment;
(iv) Objective and reasonable policies for selection by the PHA
among otherwise eligible applicants, including requirements for
applications and waiting lists (see 24 CFR 1.4), and for verification
and documentation of information relevant to acceptance or rejection of
an applicant, including documentation and verification of citizenship
and eligible immigration status under 24 CFR part 5; and
(v) Policies of participant transfer between units, developments,
and programs. For example, a PHA could adopt a criterion for voluntary
transfer that the tenant had met all obligations under the current
program, including payment of charges to the PHA.
(b) Targeting admissions to extremely low income families.
(1) Targeting requirement. (i) Not less than 40 percent of the
families admitted to a PHA's public housing program during the PHA
fiscal year from the PHA waiting list shall be extremely low income
families. This is called the ``basic targeting requirement.''
(ii) To the extent provided in paragraph (b)(2) of this section,
admission of extremely low income families to the PHA's Section 8
voucher program during the same PHA fiscal year is credited against the
basic targeting requirement.
(iii) A PHA must comply with both the targeting requirement found
in this part and the deconcentration requirements found in part 903 of
this chapter.
(2) Credit for admissions to PHA voucher program. (i) If admissions
of extremely low income families to the PHA's voucher program during a
PHA fiscal year exceeds the 75 percent minimum targeting requirement
for the PHA's voucher program (see 24 CFR 982.201(b)(2)), such excess
shall be credited (subject to the limitations in paragraph (b)(2)(ii)
of this section) against the PHA's basic targeting requirement for the
same fiscal year.
(ii) The fiscal year credit for voucher program admissions that
exceed the minimum voucher program targeting requirement shall not
exceed the lower of:
(A) Ten percent of public housing waiting list admissions during
the PHA fiscal year;
(B) Ten percent of waiting list admission to the PHA's Section 8
tenant-based assistance program during the PHA fiscal year; or
(C) The number of qualifying low income families who commence
occupancy during the fiscal year of PHA public housing units located in
census tracts with a poverty rate of 30 percent or more. For this
purpose, qualifying low income family means a low income family other
than an extremely low income family.
(c) Adoption and availability of tenant selection policies. These
selection policies shall:
(1) Be duly adopted and implemented;
(2) Be publicized by posting copies thereof in each office where
applications are received and by furnishing copies to applicants or
tenants upon request, free or at their expense, at the discretion of
the PHA; and
(3) Be consistent with the fair housing and equal opportunity
provisions of Sec. 5.105 of this title; and
(4) Be submitted to the HUD field office upon request from that
office.
Sec. 960.203 Standards for PHA tenant selection criteria.
(a) The tenant selection criteria to be established and information
to be considered shall be reasonably related to individual attributes
and behavior of an applicant and shall not be related to those which
may be imputed to a particular group or category of persons
[[Page 28800]]
of which an applicant may be a member. The PHA may use local
preferences, as provided in Sec. 960.206.
(b) Under the Public Housing Assessment System (PHAS), PHAs that
have adopted policies, implemented procedures and can document that
they successfully screen out and deny admission to certain applicants
with unfavorable criminal histories receive points. (See 24 CFR
902.43(a)(5).) This policy takes into account the importance of
screening to public housing communities and program integrity, and the
demand for assisted housing by families who will adhere to lease
responsibilities.
(c) In selection of families for admission to its public housing
program, or to occupy a public housing development or unit, the PHA is
responsible for screening family behavior and suitability for tenancy.
The PHA may consider all relevant information, which may include, but
is not limited to:
(1) An applicant's past performance in meeting financial
obligations, especially rent;
(2) A record of disturbance of neighbors, destruction of property,
or living or housekeeping habits at prior residences which may
adversely affect the health, safety or welfare of other tenants; and
(3) A history of criminal activity involving crimes of physical
violence to persons or property and other criminal acts which would
adversely affect the health, safety or welfare of other tenants. (See
Sec. 960.204.) With respect to criminal activity described in
Sec. 960.204:
(i) The PHA may require an applicant to exclude a household member
in order to be admitted to the housing program where that household
member has participated in or been culpable for actions described in
Sec. 960.204 that warrants denial.
(ii) The PHA may, where a statute requires that the PHA prohibit
admission for a prescribed period of time after some disqualifying
behavior or event, choose to continue that prohibition for a longer
period of time.
(d) In the event of the receipt of unfavorable information with
respect to an applicant, consideration shall be given to the time,
nature, and extent of the applicant's conduct (including the
seriousness of the offense).
(1) In a manner consistent with the PHA's policies, procedures and
practices referenced in paragraph (b) of this section, consideration
may be given to factors which might indicate a reasonable probability
of favorable future conduct. For example:
(i) Evidence of rehabilitation; and
(ii) Evidence of the applicant family's participation in or
willingness to participate in social service or other appropriate
counseling service programs and the availability of such programs;
(2) Consideration of rehabilitation. (i) In determining whether to
deny admission for illegal drug use or a pattern of illegal drug use by
a household member who is no longer engaging in such use, or for abuse
or a pattern of abuse of alcohol by a household member who is no longer
engaging in such abuse, the PHA may consider whether such household
member is participating in or has successfully completed a supervised
drug or alcohol rehabilitation program, or has otherwise been
rehabilitated successfully (42 U.S.C. 13661). For this purpose, the PHA
may require the applicant to submit evidence of the household member's
current participation in, or successful completion of, a supervised
drug or alcohol rehabilitation program or evidence of otherwise having
been rehabilitated successfully.
(ii) If rehabilitation is not an element of the eligibility
determination (see Sec. 960.204(a)(1)), the PHA may choose not to
consider whether the person has been rehabilitated.
Sec. 960.204 Denial of admission for criminal activity or drug abuse
by household members.
(a) Required denial of admission. (1) Persons evicted for drug-
related criminal activity. The PHA standards must prohibit admission of
an applicant to the PHA's public housing program for three years from
the date of the eviction if any household member has been evicted from
federally assisted housing for drug-related criminal activity. However,
the PHA may admit the household if the PHA determines:
(i) The evicted household member who engaged in drug-related
criminal activity has successfully completed a supervised drug
rehabilitation program approved by the PHA; or
(ii) The circumstances leading to the eviction no longer exist (for
example, the criminal household member has died or is imprisoned).
(2) Persons engaging in illegal use of a drug. The PHA must
establish standards that prohibit admission of a household to the PHA's
public housing program if:
(i) The PHA determines that any household member is currently
engaging in illegal use of a drug (For purposes of this section, a
household member is ``currently engaged in'' the criminal activity if
the person has engaged in the behavior recently enough to justify a
reasonable belief that the behavior is current); or
(ii) The PHA determines that it has reasonable cause to believe
that a household member's illegal use or pattern of illegal use of a
drug may threaten the health, safety, or right to peaceful enjoyment of
the premises by other residents.
(3) Persons convicted of methamphetamine production. The PHA must
establish standards that permanently prohibit admission to the PHA's
public housing program if any household member has ever been convicted
of drug-related criminal activity for manufacture or production of
methamphetamine on the premises of federally assisted housing.
(4) Persons subject to sex offender registration requirement. The
PHA must establish standards that prohibit admission to the PHA's
public housing program if any member of the household is subject to a
lifetime registration requirement under a State sex offender
registration program. In the screening of applicants, the PHA must
perform necessary criminal history background checks in the State where
the housing is located and in other States where household members are
known to have resided. (See part 5, subpart J of this title for
provisions concerning access to sex offender registration records.)
(b) Persons that abuse or show a pattern of abuse of alcohol. The
PHA must establish standards that prohibit admission to the PHA's
public housing program if the PHA determines that it has reasonable
cause to believe that a household member's abuse or pattern of abuse of
alcohol may threaten the health, safety, or right to peaceful enjoyment
of the premises by other residents.
(c) Use of criminal records. Before a PHA denies admission to the
PHAs public housing program on the basis of a criminal record, the PHA
must notify the household of the proposed action to be based on the
information and must provide the subject of the record and the
applicant with a copy of the criminal record and an opportunity to
dispute the accuracy and relevance of that record. (See part 5, subpart
J of this title for provisions concerning access to criminal records.)
(d) Cost of obtaining criminal record. The PHA may not pass along
to the applicant the costs of a criminal records check.
[[Page 28801]]
Sec. 960.205 Drug use by applicants: obtaining information from drug
treatment facility.
(a) Purpose. This section addresses a PHA's authority to request
and obtain information from drug abuse treatment facilities concerning
applicants. This section does not apply to information requested or
obtained from drug abuse treatment facilities other than under the
authority of section 6(t).
(b) Additional terms used in this section are as follows:
(1) Currently engaging in illegal use of a drug. Illegal use of a
drug occurred recently enough to justify a reasonable belief that there
is continuing illegal drug use by a household member.
(2) Drug abuse treatment facility. An entity:
(i) That holds itself out as providing, and provides, diagnosis,
treatment, or referral for treatment with respect to the illegal drug
use; and
(ii) That is either an identified unit within a general care
facility; or an entity other than a general medical care facility.
(c) Authorization by household member for PHA to receive
information from a drug abuse treatment facility. (1) The PHA may
require each applicant to submit for all household members who are at
least 18 years of age, and for each family head or spouse regardless of
age, one or more consent forms signed by such household member that:
(i) Requests any drug abuse treatment facility to inform the PHA
only whether the drug abuse treatment facility has reasonable cause to
believe that the household member is currently engaging in illegal drug
use;
(ii) Complies with the form of written consent required by 42 CFR
2.31; and
(iii) Authorizes the PHA to receive such information from the drug
abuse treatment facility, and to utilize such information in
determining whether to prohibit admission of the household member to
the PHA's public housing program in accordance with Sec. 960.203. (See
the Public Health Service Act, 42 U.S.C. 290dd-2, and implementing
regulations at 42 CFR part 2, with respect to responsibilities of the
drug abuse treatment facility.)
(2) The consent form submitted for a proposed household member must
expire automatically after the PHA has made a final decision to either
approve or deny the admission of such person.
(d) PHA request for information from drug use treatment facility.
(1) The PHA may request that a drug abuse treatment facility disclose
whether the drug abuse treatment facility has reasonable cause to
believe that the proposed household member is currently engaging in the
illegal use of a drug (as defined in Sec. 5.100 of this title).
(2) The PHA's request to the drug abuse treatment facility must
include a copy of the consent form signed by the proposed household
member.
(3) A drug abuse treatment facility is not liable for damages based
on any information required to be disclosed under this section if such
disclosure is consistent with section 543 of the Public Health Service
Act (42 U.S.C. 290dd-2).
(4) The PHA is not obligated to request information from a drug
treatment facility under this section, and is not liable for damages
for failing to request or receive such information.
(5) A drug abuse treatment facility may charge the PHA a reasonable
fee for information provided under this section. The PHA may not pass
along to the applicant or tenant the costs of obtaining this
information.
(e) Prohibition of discriminatory treatment of applicants. (1) A
PHA may request information from a drug abuse treatment facility under
paragraph (d) of this section only if the PHA has adopted and has
consistently implemented either of the following policies, obtaining a
signed consent form from the proposed household members:
(i) Policy A--Request for all families. Under Policy A, the PHA
must submit a request for information to a drug abuse treatment
facility in accordance with paragraph (d) of this section before
admitting any family to the PHA's public housing program. For each such
family, the request must be submitted for each proposed household
member described in paragraph (c)(1) of this section.
(ii) Policy B--Request for certain household members. Under Policy
B, the PHA must submit a request to a drug abuse treatment facility
only with respect to each proposed household member:
(A) Whose criminal record indicates prior arrest or conviction for
any criminal activity that may be a basis for denial of admission under
Sec. 960.205; or
(B) Whose prior tenancy records indicate that the proposed
household member:
(1) Engaged in the destruction of property;
(2) Engaged in violent activity against another person; or
(3) Interfered with the right of peaceful enjoyment of the premises
of other residents.
(4) The policy adopted by the PHA must be included in the PHA
administrative plan and the PHA plan.
(f) Records management and confidentiality. Each PHA that receives
information from a drug abuse treatment facility under this section
must establish and implement a system of records management that
ensures that any information which the PHA receives from the drug abuse
treatment facility about a person:
(1) Is maintained confidentially in accordance with section 543 of
the Public Health Service Act (12 U.S.C. 290dd-2);
(2) Is not misused or improperly disseminated; and
(3) Is destroyed, as applicable:
(i) Not later than 5 business days after the PHA makes a final
decision to admit the person as a household member under the PHA's
public housing program; or
(ii) If the PHA denies the admission of such person as a household
member, in a timely manner after the date on which the statute of
limitations for the commencement of a civil action based upon that
denial of admissions has expired without the filing of a civil action
or until final disposition of any such litigation.
Sec. 960.206 Waiting list: Local preferences in admission to public
housing program.
(a) Establishment of PHA local preferences. (1) The PHA may adopt a
system of local preferences for selection of families admitted to the
PHA's public housing program. The PHA system of selection preferences
must be based on local housing needs and priorities as determined by
the PHA. In determining such needs and priorities, the PHA shall use
generally accepted data sources. Such sources include public comment on
the PHA plan (as received pursuant to Sec. 903.17 of this chapter), and
on the consolidated plan for the relevant jurisdiction (as received
pursuant to part 91 of this title).
(2) The PHA may limit the number of applicants that qualify for any
local preference.
(3) PHA adoption and implementation of local preferences is subject
to HUD requirements concerning income-targeting (Sec. 960.202(b)),
deconcentration and income-mixing (Sec. 903.7), and selection
preferences for developments designated exclusively for elderly or
disabled families or for mixed population developments (Sec. 960.407).
(4) The PHA must inform all applicants about available preferences
and must give applicants an opportunity to show that they qualify for
available preferences.
(b) Particular local preferences--(1) Residency requirements or
preferences.
(i) Residency requirements are prohibited. Although a PHA is not
prohibited from adopting a residency preference, the PHA may only adopt
or
[[Page 28802]]
implement residency preferences in accordance with non-discrimination
and equal opportunity requirements listed at Sec. 5.105(a) of this
title.
(ii) A residency preference is a preference for admission of
persons who reside in a specified geographic area (``residency
preference area''). A county or municipality may be used as a residency
preference area. An area smaller than a county or municipality may not
be used as a residency preference area.
(iii) Any PHA residency preferences must be included in the
statement of PHA policies that govern eligibility, selection and
admission to the program, which is included in the PHA annual plan (or
supporting documents) pursuant to part 903 of this chapter. Such
policies must specify that use of a residency preference will not have
the purpose or effect of delaying or otherwise denying admission to the
program based on the race, color, ethnic origin, gender, religion,
disability, or age of any member of an applicant family.
(iv) A residency preference must not be based on how long an
applicant has resided or worked in a residency preference area.
(v) Applicants who are working or who have been notified that they
are hired to work in a residency preference area must be treated as
residents of the residency preference area. The PHA may treat graduates
of, or active participants in, education and training programs in a
residency preference area as residents of the residency preference area
if the education or training program is designed to prepare individuals
for the job market.
(2) Preference for working families. The PHA may adopt a preference
for admission of working families (families where the head, spouse, or
sole member, is employed). However, an applicant must be given the
benefit of the working family preference if the head and spouse, or
sole member is age 62 or older, or is a person with disabilities.
(3) Preference for person with disabilities. The PHA may adopt a
preference for admission of families that include a person with
disabilities. However, the PHA may not adopt a preference for persons
with a specific disability.
(4) Preference for victims of domestic violence. The PHA should
consider whether to adopt a local preference for admission of families
that include victims of domestic violence.
(5) Preference for single persons who are elderly, displaced,
homeless or a person with disabilities. The PHA may adopt a preference
for admission of single persons who are age 62 or older, displaced,
homeless, or persons with disabilities over other single persons.
(c) Selection for particular unit. In selecting a family to occupy
a particular unit, the PHA may match characteristics of the family with
the type of unit available, for example, number of bedrooms. In
selection of families to occupy units with special accessibility
features for persons with disabilities, the PHA must first offer such
units to families which include persons with disabilities who require
such accessibility features (see Secs. 8.27 and 100.202 of this title).
(d) Housing assistance limitation for single persons. A single
person who is not an elderly or displaced person, or a person with
disabilities, or the remaining member of a resident family may not be
provided a housing unit with two or more bedrooms.
(e) Selection method. (1) The PHA must use the following to select
among applicants on the waiting list with the same priority for
admission:
(i) Date and time of application; or
(ii) A drawing or other random choice technique.
(2) The method for selecting applicants must leave a clear audit
trail that can be used to verify that each applicant has been selected
in accordance with the method specified in the PHA plan.
Sec. 960.208 Notification to applicants.
(a) The PHA must promptly notify any applicant determined to be
ineligible for admission to a project of the basis for such
determination, and must provide the applicant upon request, within a
reasonable time after the determination is made, with an opportunity
for an informal hearing on such determination.
(b) When a determination has been made that an applicant is
eligible and satisfies all requirements for admission, including the
tenant selection criteria, the applicant must be notified of the
approximate date of occupancy insofar as that date can be reasonably
determined.
PART 966--PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE
25. The authority citation for part 966 is revised to read as
follows:
Authority: 42 U.S.C. 1437d and 3535(d).
26. The heading for part 966 is revised to read as set forth above.
27. Revise Sec. 966.1 to read as follows:
Sec. 966.1 Purpose and applicability.
(a) This part is applicable to public housing.
(b) Subpart A of this part prescribes the provisions that must be
incorporated in leases for public housing dwelling units.
(c) Subpart B of this part prescribes public housing grievance
hearing requirements.
28. Add a new Sec. 966.2 to read as follows:
Sec. 966.2 Definitions.
The following terms are defined in part 5, subpart A of this title:
1937 Act, covered person, drug, drug-related criminal activity,
federally assisted housing, guest, household, HUD, other person under
the tenant's control, public housing, premises, public housing agency,
Section 8, violent criminal activity.
29. In Sec. 966.4, revise paragraphs (d)(1), (f)(12), (1)(2),
(1)(3)(i), and (1)(5) to read as follows:
Sec. 966.4 Lease requirements.
* * * * *
(d) Tenant's right to use and occupancy. (1) The lease shall
provide that the tenant shall have the right to exclusive use and
occupancy of the leased unit by the members of the household authorized
to reside in the unit in accordance with the lease, including
reasonable accommodation of their guests. The term guest is defined in
24 CFR 5.100.
* * * * *
(f) Tenant's obligations. The lease shall provide that the tenant
shall be obligated: * * *
(12) (i) To assure that no tenant, member of the tenant's
household, or guest engages in:
(A) Any criminal activity that threatens the health, safety or
right to peaceful enjoyment of the premises by other residents; or
(B) Any drug-related criminal activity on or off the premises;
(ii) To assure that no other person under the tenant's control
engages in:
(A) Any criminal activity that threatens the health, safety or
right to peaceful enjoyment of the premises by other residents; or
(B) Any drug-related criminal activity on the premises;
(iii) To assure that no member of the household engages in an abuse
or pattern of abuse of alcohol that affects the health, safety, or
right to peaceful enjoyment of the premises by other residents.
* * * * *
(1) * * *
(2) Grounds for termination of tenancy. The PHA may terminate the
tenancy only for:
[[Page 28803]]
(i) Serious or repeated violation of material terms of the lease,
such as the following:
(A) Failure to make payments due under the lease;
(B) Failure to fulfill household obligations, as described in
paragraph (f) of this section;
(ii) Other good cause. Other good cause includes, but is not
limited to, the following:
(A) Criminal activity or alcohol abuse as provided in paragraph
(1)(5) of this section;
(B) Discovery after admission of facts that made the tenant
ineligible;
(C) Discovery of material false statements or fraud by the tenant
in connection with an application for assistance or with reexamination
of income;
(D) Failure of a family member to comply with service requirement
provisions of part 960, subpart F, of this chapter--as grounds only for
non-renewal of the lease and termination of tenancy at the end of the
twelve-month lease term; and
(E) Failure to accept the PHA's offer of a lease revision to an
existing lease: that is on a form adopted by the PHA in accordance with
Sec. 966.3; with written notice of the offer of the revision at least
60 calendar days before the lease revision is scheduled to take effect;
and with the offer specifying a reasonable time limit within that
period for acceptance by the family.
(3) Lease termination notice. (i) The PHA must give written notice
of lease termination of:
(A) 14 days in the case of failure to pay rent;
(B) A reasonable period of time considering the seriousness of the
situation (but not to exceed 30 days):
(1) If the health or safety of other residents, PHA employees, or
persons residing in the immediate vicinity of the premises is
threatened; or
(2) If any member of the household has engaged in any drug-related
criminal activity or violent criminal activity; or
(3) If any member of the household has been convicted of a felony;
(C) 30 days in any other case, except that if a State or local law
allows a shorter notice period, such shorter period shall apply.
* * * * *
(5) PHA termination of tenancy for criminal activity or alcohol
abuse.
(i) Evicting drug criminals. (A) Methamphetamine conviction. The
PHA must immediately terminate the tenancy if the PHA determines that
any member of the household has ever been convicted of drug-related
criminal activity for manufacture or production of methamphetamine on
the premises of federally assisted housing.
(B) Drug crime on or off the premises. The lease must provide that
drug-related criminal activity engaged in on or off the premises by any
tenant, member of the tenant's household or guest, and any such
activity engaged in on the premises by any other person under the
tenant's control, is grounds for the PHA to terminate tenancy. In
addition, the lease must provide that a PHA may evict a family when the
PHA determines that a household member is illegally using a drug or
when the PHA determines that a pattern of illegal use of a drug
interferes with the health, safety, or right to peaceful enjoyment of
the premises by other residents.
(ii) Evicting other criminals. (A) Threat to other residents. The
lease must provide that any criminal activity by a covered person that
threatens the health, safety, or right to peaceful enjoyment of the
premises by other residents (including PHA management staff residing on
the premises) or threatens the health, safety, or right to peaceful
enjoyment of their residences by persons residing in the immediate
vicinity of the premises is grounds for termination of tenancy.
(B) Fugitive felon or parole violator. The PHA may terminate the
tenancy if a tenant is fleeing to avoid prosecution, or custody or
confinement after conviction, for a crime, or attempt to commit a
crime, that is a felony under the laws of the place from which the
individual flees, or that, in the case of the State of New Jersey, is a
high misdemeanor; or violating a condition of probation or parole
imposed under Federal or State law.
(iii) Eviction for criminal activity. (A) Evidence. The PHA may
evict the tenant by judicial action for criminal activity in accordance
with this section if the PHA determines that the covered person has
engaged in the criminal activity, regardless of whether the covered
person has been arrested or convicted for such activity and without
satisfying the standard of proof used for a criminal conviction.
(B) Notice to Post Office. When a PHA evicts an individual or
family for criminal activity, the PHA must notify the local post office
serving the dwelling unit that the individual or family is no longer
residing in the unit.
(iv) Use of criminal record. If the PHA seeks to terminate the
tenancy for criminal activity as shown by a criminal record, the PHA
must notify the household of the proposed action to be based on the
information and must provide the subject of the record and the tenant
with a copy of the criminal record before a PHA grievance hearing or
court trial concerning the termination of tenancy or eviction. The
tenant must be given an opportunity to dispute the accuracy and
relevance of that record in the grievance hearing or court trial.
(v) Cost of obtaining criminal record. The PHA may not pass along
to the tenant the costs of a criminal records check.
(vi) Evicting alcohol abusers. The PHA must establish standards
that allow termination of tenancy if the PHA determines that a
household member has:
(A) Engaged in abuse or pattern of abuse of alcohol that threatens
the health, safety, or right to peaceful enjoyment of the premises by
other residents; or
(B) Furnished false or misleading information concerning illegal
drug use, alcohol abuse, or rehabilitation of illegal drug users or
alcohol abusers.
(vii) PHA action, generally. (A) Assessment under PHAS. Under the
Public Housing Assessment System (PHAS), PHAs that have adopted
policies, implemented procedures and can document that they
appropriately evict any public housing residents who engage in certain
activity detrimental to the public housing community receive points.
(See 24 CFR 902.43(a)(5).) This policy takes into account the
importance of eviction of such residents to public housing communities
and program integrity, and the demand for assisted housing by families
who will adhere to lease responsibilities.
(B) Consideration of circumstances. In a manner consistent with
such policies, procedures and practices, the PHA may consider all
circumstances relevant to a particular case such as the seriousness of
the offending action, the extent of participation by the leaseholder in
the offending action, the effects that the eviction would have on
family members not involved in the offending activity and the extent to
which the leaseholder has shown personal responsibility and has taken
all reasonable steps to prevent or mitigate the offending action.
(C) Exclusion of culpable household member. The PHA may require a
tenant to exclude a household member in order to continue to reside in
the assisted unit, where that household member has participated in or
been culpable for action or failure to act that warrants termination.
(D) Consideration of rehabilitation. In determining whether to
terminate tenancy for illegal drug use or a pattern of illegal drug use
by a household member who is no longer engaging in
[[Page 28804]]
such use, or for abuse or a pattern of abuse of alcohol by a household
member who is no longer engaging in such abuse, the PHA may consider
whether such household member is participating in or has successfully
completed a supervised drug or alcohol rehabilitation program, or has
otherwise been rehabilitated successfully (42 U.S.C. 13662). For this
purpose, the PHA may require the tenant to submit evidence of the
household member's current participation in, or successful completion
of, a supervised drug or alcohol rehabilitation program or evidence of
otherwise having been rehabilitated successfully.
(E) Length of period of mandatory prohibition on admission. If a
statute requires that the PHA prohibit admission of persons for a
prescribed period of time after some disqualifying behavior or event,
the PHA may apply that prohibition for a longer period of time.
(F) Nondiscrimination limitation. The PHA's eviction actions must
be consistent with fair housing and equal opportunity provisions of
Sec. 5.105 of this title.
* * * * *
30. In Sec. 966.51, revise paragraphs (a)(2)(i)(A) and (a)(2)(i)(B)
and add paragraph (a)(2)(i)(C) to read as follows:
Sec. 966.51 Applicability.
(a) * * *
(2)(i) * * *
(A) Any criminal activity that threatens the health, safety or
right to peaceful enjoyment of the premises of other residents or
employees of the PHA;
(B) Any violent or drug-related criminal activity on or off such
premises; or
(C) Any criminal activity that resulted in felony conviction of a
household member.
* * * * *
PART 982--SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER
PROGRAM
31. The authority citation for part 982 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
32. Amend Sec. 982.4 as follows:
a. Remove the definitions of drug-related criminal activity, drug-
trafficking, and violent criminal activity from paragraph (b);
b. Revise paragraph (a)(2) to read as follows:
Sec. 982.4 Definitions.
(a) * * *
(2) Terms found elsewhere. The following terms are defined in part
5, subpart A of this title: 1937 Act, covered person, drug, drug-
related criminal activity, federally assisted housing, guest,
household, HUD, MSA, other person under the tenant's control, public
housing, Section 8, and violent criminal activity.
* * * * *
33. In Sec. 982.54, add a new paragraph (d)(4)(iii) to read as
follows:
Sec. 982.54 Administrative plan.
* * * * *
(d) * * *
(4) * * *
(iii) Standards for denying admission or terminating assistance
based on criminal activity or alcohol abuse in accordance with
Sec. 982.553;
* * * * *
34. In Sec. 982.310, revise paragraph (c) and add a new paragraph
(h) to read as follows:
Sec. 982.310 Owner termination of tenancy.
* * * * *
(c) Criminal activity. (1) Evicting drug criminals due to drug
crime on or near the premises. The lease must provide that drug-related
criminal activity engaged in, on or near the premises by any tenant,
household member, or guest, or such activity engaged in on the premises
by any other person under the tenant's control, is grounds for the
owner to terminate tenancy. In addition, the lease must provide that
the owner may evict a family when the owner determines that a household
member is illegally using a drug or when the owner determines that a
pattern of illegal use of a drug interferes with the health, safety, or
right to peaceful enjoyment of the premises by other residents.
(2) Evicting other criminals. (i) Threat to other residents. The
lease must provide that the owner may terminate tenancy for any of the
following types of criminal activity by a covered person:
(A) Any criminal activity that threatens the health, safety, or
right to peaceful enjoyment of the premises by other residents
(including property management staff residing on the premises);
(B) 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
(C) Any violent criminal activity on or near the premises by a
tenant, household member, or guest, or any such activity on the
premises by any other person under the tenant's control.
(ii) Fugitive felon or parole violator. The lease must provide that
the owner may terminate the tenancy if a tenant is:
(A) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(B) Violating a condition of probation or parole imposed under
Federal or State law.
(3) Evidence of criminal activity. The owner may terminate tenancy
and evict by judicial action a family for criminal activity by a
covered person in accordance with this section if the owner determines
that the covered person has engaged in the criminal activity,
regardless of whether the covered person has been arrested or convicted
for such activity and without satisfying the standard of proof used for
a criminal conviction. (See part 5, subpart J, of this title for
provisions concerning access to criminal records.)
* * * * *
(h) Termination of tenancy decisions.--(1) General. If the law and
regulation permit the owner to take an action but do not require action
to be taken, the owner may take or not take the action in accordance
with the owner's standards for eviction. The owner may consider all of
the circumstances relevant to a particular eviction case, such as:
(i) The seriousness of the offending action;
(ii) The effect on the community of denial or termination or the
failure of the owner to take such action;
(iii) The extent of participation by the leaseholder in the
offending action;
(iv) The effect of denial of admission or termination of tenancy on
household members not involved in the offending activity;
(v) The demand for assisted housing by families who will adhere to
lease responsibilities;
(vi) The extent to which the leaseholder has shown personal
responsibility and taken all reasonable steps to prevent or mitigate
the offending action;
(vii) The effect of the owner's action on the integrity of the
program.
(2) Exclusion of culpable household member. The owner may require a
tenant to exclude a household member in order to continue to reside in
the assisted unit, where that household member has participated in or
been culpable for action or failure to act that warrants termination.
(3) Consideration of rehabilitation. In determining whether to
terminate
[[Page 28805]]
tenancy for illegal use of drugs or alcohol abuse by a household member
who is no longer engaged in such behavior, the owner may consider
whether such household member is participating in or has successfully
completed a supervised drug or alcohol rehabilitation program, or has
otherwise been rehabilitated successfully (42 U.S.C. 13661). For this
purpose, the owner may require the tenant to submit evidence of the
household member's current participation in, or successful completion
of, a supervised drug or alcohol rehabilitation program or evidence of
otherwise having been rehabilitated successfully.
(4) Nondiscrimination limitation. The owner's termination of
assistance actions must be consistent with fair housing and equal
opportunity provisions of Sec. 5.105 of this title.
35. Amend Sec. 982.551 by redesignating paragraph (m) as paragraph
(n); adding a new paragraph (m); and revising paragraph (l) to read as
follows:
Sec. 982.551 Obligations of participant.
* * * * *
(l) Crime by household members. The members of the household may
not engage in drug-related criminal activity or violent criminal
activity or other criminal activity that threatens the health, safety
or right to peaceful enjoyment of other residents and persons residing
in the immediate vicinity of the premises (see Sec. 982.553).
(m) Alcohol abuse by household members. The members of the
household must not abuse alcohol in a way that threatens the health,
safety or right to peaceful enjoyment of other residents and persons
residing in the immediate vicinity of the premises.
* * * * *
36. Amend Sec. 982.552 by revising paragraphs (b)(1), (c)(1)(iv)
and (c)(2), and by adding new paragraph (c)(1)(xi), to read as follows:
Sec. 982.552 PHA denial or termination of assistance for family.
* * * * *
(b) Requirement to deny admission or terminate assistance. (1) For
provisions on denial of admission and termination of assistance for
illegal drug use, other criminal activity, and alcohol abuse that would
threaten other residents, see Sec. 982.553.
* * * * *
(c) * * *
(1) * * *
(iv) If any member of the family has committed fraud, bribery, or
any other corrupt or criminal act in connection with any Federal
housing program (see also Sec. 982.553(a)(1));
* * * * *
(xi) If the family has been engaged in criminal activity or alcohol
abuse as described in Sec. 982.553.
(2) Consideration of circumstances. In determining whether to deny
or terminate assistance because of action or failure to act by members
of the family:
(i) The PHA may consider all relevant circumstances such as the
seriousness of the case, the extent of participation or culpability of
individual family members, mitigating circumstances related to the
disability of a family member, and the effects of denial or termination
of assistance on other family members who were not involved in the
action or failure.
(ii) The PHA may impose, as a condition of continued assistance for
other family members, a requirement that other family members who
participated in or were culpable for the action or failure will not
reside in the unit. The PHA may permit the other members of a
participant family to continue receiving assistance.
(iii) In determining whether to deny admission or terminate
assistance for illegal use of drugs or alcohol abuse by a household
member who is no longer engaged in such behavior, the PHA consider
whether such household member is participating in or has successfully
completed a supervised drug or alcohol rehabilitation program, or has
otherwise been rehabilitated successfully (42 U.S.C. 13661). For this
purpose, the PHA may require the applicant or tenant to submit evidence
of the household member's current participation in, or successful
completion of, a supervised drug or alcohol rehabilitation program or
evidence of otherwise having been rehabilitated successfully.
(iv) If the family includes a person with disabilities, the PHA
decision concerning such action is subject to consideration of
reasonable accommodation in accordance with part 8 of this title.
(v) Nondiscrimination limitation. The PHA's admission and eviction
actions must be consistent with fair housing and equal opportunity
provisions of Sec. 5.105 of this title.
* * * * *
37. Revise Sec. 982.553 to read as follows:
Sec. 982.553 Denial of admission and termination of assistance for
criminals and alcohol abusers.
(a) Denial of admission. (1) Prohibiting admission of drug
criminals.
(i) The PHA must prohibit admission to the program of an applicant
for three years from the date of eviction if a household member has
been evicted from federally assisted housing for drug-related criminal
activity. However, the PHA may admit the household if the PHA
determines:
(A) That the evicted household member who engaged in drug-related
criminal activity has successfully completed a supervised drug
rehabilitation program approved by the PHA; or
(B) That the circumstances leading to eviction no longer exist (for
example, the criminal household member has died or is imprisoned).
(ii) The PHA must establish standards that prohibit admission if:
(A) The PHA determines that any household member is currently
engaging in illegal use of a drug;
(B) The PHA determines that it has reasonable cause to believe that
a household member's illegal drug use or a pattern of illegal drug use
may threaten the health, safety, or right to peaceful enjoyment of the
premises by other residents; or
(C) Any household member has ever been convicted of drug-related
criminal activity for manufacture or production of methamphetamine on
the premises of federally assisted housing.
(2) Prohibiting admission of other criminals--(i) Mandatory
prohibition. The PHA must establish standards that prohibit admission
to the program if any member of the household is subject to a lifetime
registration requirement under a State sex offender registration
program. In this screening of applicants, the PHA must perform criminal
history background checks necessary to determine whether any household
member is subject to a lifetime sex offender registration requirement
in the State where the housing is located and in other States where the
household members are known to have resided.
(ii) Permissive prohibitions. (A) The PHA may prohibit admission of
a household to the program if the PHA determines that any household
member is currently engaged in, or has engaged in during a reasonable
time before the admission:
(1) Drug-related criminal activity;
(2) Violent criminal activity;
(3) Other criminal activity which may threaten the health, safety,
or right to peaceful enjoyment of the premises by other residents or
persons residing in the immediate vicinity; or
(4) Other criminal activity which may threaten the health or safety
of the owner, property management staff, or persons performing a
contract
[[Page 28806]]
administration function or responsibility on behalf of the PHA
(including a PHA employee or a PHA contractor, subcontractor or agent).
(B) The PHA may establish a period before the admission decision
during which an applicant must not to have engaged in the activities
specified in paragraph (a)(2)(i) of this section (``reasonable time'').
(C) If the PHA previously denied admission to an applicant because
a member of the household engaged in criminal activity, the PHA may
reconsider the applicant if the PHA has sufficient evidence that the
members of the household are not currently engaged in, and have not
engaged in, such criminal activity during a reasonable period, as
determined by the PHA, before the admission decision.
(1) The PHA would have ``sufficient evidence'' if the household
member submitted a certification that she or he is not currently
engaged in and has not engaged in such criminal activity during the
specified period and provided supporting information from such sources
as a probation officer, a landlord, neighbors, social service agency
workers and criminal records, which the PHA verified.
(2) For purposes of this section, a household member is ``currently
engaged in'' criminal activity if the person has engaged in the
behavior recently enough to justify a reasonable belief that the
behavior is current.
(3) Prohibiting admission of alcohol abusers. The PHA must
establish standards that prohibit admission to the program if the PHA
determines that it has reasonable cause to believe that a household
member's abuse or pattern of abuse of alcohol may threaten the health,
safety, or right to peaceful enjoyment of the premises by other
residents.
(b) Terminating assistance--(1) Terminating assistance for drug
criminals. (i) The PHA must establish standards that allow the PHA to
terminate assistance for a family under the program if the PHA
determines that:
(A) Any household member is currently engaged in any illegal use of
a drug; or
(B) A pattern of illegal use of a drug by any household member
interferes with the health, safety, or right to peaceful enjoyment of
the premises by other residents.
(ii) The PHA must immediately terminate assistance for a family
under the program if the PHA determines that any member of the
household has ever been convicted of drug-related criminal activity for
manufacture or production of methamphetamine on the premises of
federally assisted housing.
(iii) The PHA must establish standards that allow the PHA to
terminate assistance under the program for a family if the PHA
determines that any family member has violated the family's obligation
under Sec. 982.551 not to engage in any drug-related criminal activity.
(2) Terminating assistance for other criminals. The PHA must
establish standards that allow the PHA to terminate assistance under
the program for a family if the PHA determines that any household
member has violated the family's obligation under Sec. 982.551 not to
engage in violent criminal activity.
(3) Terminating assistance for alcohol abusers. The PHA must
establish standards that allow termination of assistance for a family
if the PHA determines that a household member's abuse or pattern of
abuse of alcohol may threaten the health, safety, or right to peaceful
enjoyment of the premises by other residents.
(c) Evidence of criminal activity. The PHA may terminate assistance
for criminal activity by a household member as authorized in this
section if the PHA determines, based on a preponderance of the
evidence, that the household member has engaged in the activity,
regardless of whether the household member has been arrested or
convicted for such activity.
(d) Use of criminal record.--(1) Denial. If a PHA proposes to deny
admission for criminal activity as shown by a criminal record, the PHA
must provide the subject of the record and the applicant with a copy of
the criminal record. The PHA must give the family an opportunity to
dispute the accuracy and relevance of that record, in the informal
review process in accordance with Sec. 982.554. (See part 5, subpart J
for provision concerning access to criminal records.)
(2) Termination of assistance. If a PHA proposes to terminate
assistance for criminal activity as shown by a criminal record, the PHA
must notify the household of the proposed action to be based on the
information and must provide the subject of the record and the tenant
with a copy of the criminal record. The PHA must give the family an
opportunity to dispute the accuracy and relevance of that record in
accordance with Sec. 982.555.
(3) Cost of obtaining criminal record. The PHA may not pass along
to the tenant the costs of a criminal records check.
Dated: April 25, 2001.
Mel Martinez,
Secretary.
[FR Doc. 01-12840 Filed 5-23-01; 8:45 am]
BILLING CODE 4210-33-P