Revised Restrictions on Assistance to Noncitizens

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR-4154-I-01]

RIN 2501-AC36

Revised Restrictions on Assistance to Noncitizens

AGENCY: Office of the Secretary, HUD.

ACTION: Interim rule.

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SUMMARY: Section 214 of the Housing and Community Development Act of

1980 prohibits HUD from making certain financial assistance available

to persons other than United States citizens, nationals, or certain

categories of eligible noncitizens. This interim rule revises HUD's

regulations governing assistance to noncitizens to incorporate the

recent statutory amendments made to Section 214 by the Use of Assisted

Housing by Aliens Act of 1996 (``Immigration Reform Act''). This rule,

however, does not amend the noncitizen requirements for Indian Housing

Authorities (IHAs). Further, this rule does not implement the

provisions of the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 (``Welfare Reform Act'') which concern

immigration. The changes to HUD regulations required by that Act will

be the subject of future rulemaking.

DATES: Effective date: November 29 1996.

Comments due date: November 29, 1996.

ADDRESSES: Interested persons are invited to submit comments regarding

the interim rule to the Office of General Counsel, Rules Docket Clerk,

Room 10276, Department of Housing and

[[Page 60536]]

Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500.

Communications should refer to the above docket number and title.

Facsimile (FAX) comments are not acceptable. A copy of each

communication submitted will be available for public inspection and

copying during regular business hours (7:30 a.m. to 5:30 p.m. Eastern

Time) at the above address.

FOR FURTHER INFORMATION CONTACT: For the covered programs, the

following persons should be contacted:

(1) For Public Housing, Section 8 Rental Certificate, Rental

Voucher and Moderate Rehabilitation (except Single Room Occupancy--

``SRO'') programs--Linda Campbell, Office of Public Housing, Room 4206,

Department of Housing and Urban Development, 451 Seventh Street, SW,

Washington, DC 20410, telephone (202) 708-0744;

(2) For the Section 8 Moderate Rehabilitation SRO program--Dave

Pollack, Office of Special Needs Assistance Programs, Room 7262,

Department of Housing and Urban Development, 451 Seventh Street, SW,

Washington, DC 20410, telephone (202) 708-1234;

(3) For the other Section 8 programs, the Section 236 programs,

Housing Development Grants and Rent Supplement--Barbara Hunter, Office

of Asset Management and Disposition, Room 6182, Department of Housing

and Urban Development, 451 Seventh Street, SW, Washington, DC 20410,

telephone (202) 708-3944; and

(4) For the Section 235 homeownership program--Morris Carter,

Office of Lender Activities and Program Compliance, Room 9156,

Department of Housing and Urban Development, 451 Seventh Street, SW,

Washington, DC 20410, telephone (202) 708-1515.

For persons with hearing or speech impairment, the TTY number is 1-

800-877-8339 (Federal Information Relay Service TTY). With the

exception of the ``800'' number, none of the foregoing telephone

numbers are toll-free.

SUPPLEMENTARY INFORMATION:

I. Background

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

Development Act of 1980

On March 20, 1995 (60 FR 14816), HUD issued its final rule

implementing Section 214 of the Housing and Community Development Act

of 1980 (42 U.S.C. 1436a) and that rule became effective on June 19,

1995. Section 214 prohibits HUD from making certain financial

assistance available to persons other than United States citizens,

nationals, or specified categories of eligible noncitizens.

HUD's March 20, 1995 final rule promulgated virtually identical

``noncitizen'' regulations for the various HUD programs covered by

Section 214. On March 27, 1996 (61 FR 13614), HUD, as part of its

continuing regulatory reform efforts, published a final rule

eliminating the repetitiveness of these duplicative regulations by

consolidating the noncitizens requirements in a new subpart E to 24 CFR

part 5. HUD established part 5 to set forth those requirements which

are applicable to one or more program regulations. The March 27, 1996

final rule, however, did not consolidate the noncitizen requirements

for HUD's Indian Housing programs.

B. This Interim Rule

This interim rule revises HUD's regulations at 24 CFR part 5,

subpart E by incorporating the recent amendments made to Section 214 by

the Use of Assisted Housing by Aliens Act of 1996 (Title V, Subtitle E

of the Illegal Immigration Reform and Responsibility Act of 1996, Pub.

L. 104-208, 110 Stat. 3009, approved September 30, 1996) (the

Immigration Reform Act). The Native American Housing Assistance and

Self-Determination Act of 1996 (Pub. L. 104-330; 110 Stat. 4016;

approved October 26, 1996) completely revises HUD's Indian Housing

programs, this interim rule does not amend the noncitizen requirements

for Indian Housing Authorities (IHAs) in Sec. 950.310. The transition

notice and regulations promulgated under the Native American Housing

Assistance and Self-Determination Act of 1996 will address the

applicability of the Section 214 requirements as amended by the

Immigration Reform Act.

The most significant changes made to Section 214 by the Immigration

Reform Act, and consequently to HUD's existing Section 214 regulations

by this interim rule are as follows:

1. The interim rule provides that responsible entities may not make

assistance available to a family applying for assistance until at least

the eligibility of one family member has been established, and

assistance must be prorated based on the number of individuals in the

family for whom eligibility has been affirmatively established. Related

to this issue, the Immigration Reform Act also provides that pending

such verification the Secretary may not delay, deny, reduce or

terminate the eligibility of an individual for financial assistance on

the basis of the immigration status of that individual. Although at

first glance these two provisions appear to conflict, HUD believes they

are complementary.

HUD believes that the first provision places responsibility on the

family to produce documentation of eligible immigration status.

Accordingly, this interim rule provides that no family shall be

provided assistance until the required documentation has been

submitted. The second provision places responsibility on the INS and

any other entity which must take certain action once the family has

submitted the necessary documentation. Once the family has produced the

necessary documents, it should not be penalized for delays on the part

of those entities which must verify eligible immigration status.

2. The interim rule requires that continued financial assistance

provided to an eligible mixed family after November 29, 1996 be

prorated based on the percentage of family members that are eligible

for assistance. An eligible mixed family is a family containing members

with eligible immigration status, as well as members without such

status, and that meets the criteria for eligibility for continued

assistance as set forth in Section 214.

3. The interim rule requires that HUD suspend financial assistance

to a family upon determining that the family has knowingly permitted an

ineligible individual to reside on a permanent basis in the family's

unit. The suspension shall be for a period of at least 24 months. This

provision does not apply if the ineligible individual has already been

considered in calculating any proration of assistance for the family.

4. This interim rule allows responsible entities administering

financial assistance under a Section 214 covered program to require

that individuals who declare themselves to be U.S. citizens or

nationals to verify the declaration through appropriate documentation

(e.g., United States passport, resident alien card, registration card,

social security card, or other appropriate documentation). Before this

amendment, only individuals who are not U.S. citizens or nationals are

required to present documentation of their eligible immigration status.

5. The interim rule revises the maximum period for deferral of

termination of assistance provided after November 29, 1996 from an

aggregate of 3 years to an aggregate of 18 months. The 18-month maximum

deferral period does not apply to refugees under section 207 of the

Immigration and Nationality Act or to individuals seeking asylum

[[Page 60537]]

under section 208 of that Act. The maximum deferral period for

deferrals granted prior to November 29, 1996 continues to be 3 years.

6. The interim rule provides that an individual has a maximum

period of 30-days, starting from the date of receipt of the notice of

denial or termination of assistance, to request a fair hearing. HUD

believes that due process requires that assistance already being

provided to a tenant may not be delayed, denied, reduced or terminated

until completion of the fair hearing.

7. This interim rule, in accordance with Section 214 as amended,

provides that a PHA may elect not to comply with the requirements of 24

CFR part 5, subpart E. In complying with 24 CFR part 5, subpart E, a

PHA may initiate procedures to affirmatively establish or verify the

eligibility of an individual or family at any time in which the PHA

determines that such eligibility is in question, regardless of whether

or not that individual or family is at or near the top of the waiting

list of the PHA. The PHA may also affirmatively establish or verify the

eligibility of a family member in accordance with the procedures set

forth in section 274A(b)(1) of the Immigration and Nationality Act (8

U.S.C. 1324A(b)(1)), and shall have access to any relevant information

contained in the INS SAVE system (or any successor thereto) that

relates to any family member applying for financial assistance.

The change described in paragraph #7 is based on the language of

new subsection 214(h)(2), which was added by Section 575 of the

Immigration Reform Act. Subsection 214(h)(2) provides that ``[a] Public

Housing Agency * * * may elect not to comply with this section.'' The

use of the word ``section'' (as opposed to ``subsection'') in this

provision, in a strict statutory construction, refers to Section 214 in

its entirety.

The Immigration Reform Act restricts the provision of assistance to

a family until at least the eligibility of one family member has been

verified. This interim rule, however, provides that HUD shall not be

responsible for verifying compliance with the requirements of Section

214 if a PHA elects to ``opt-out'' of 24 CFR part 5, subpart E. HUD

would only be able to verify the eligible immigration status of family

members applying for assistance with the aid of the PHAs. Since PHA

assistance would be required, the imposition of such verification

responsibility upon HUD would in effect negate the right of a PHA to

``opt-out'' of Section 214.

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

The Personal Responsibility and Work Opportunity Reconciliation Act

of 1996 (Pub.L. 104-193; 110 Stat. 2105; approved August 22, 1996)

(Welfare Reform Act) expanded the scope of Section 214. Specifically,

Section 441 of the Welfare Act makes assistance provided under the

National Homeownership Trust (42 U.S.C. 12851-12859) subject to the

noncitizen requirements of Section 214. Pursuant to 42 U.S.C. 12859,

the National Homeownership Trust was terminated on September 30, 1994.

Accordingly, this interim rule does not revise 24 CFR part 5, subpart E

to incorporate the amendment made by the Welfare Reform Act.

Section 441 of the Welfare Reform Act also made the restrictions of

Section 214 applicable to the following programs administered by the

Secretary of Agriculture: direct loan program under section 502 of the

Housing Act of 1949 or section 502(c)(5)(D), 504, 521(a)(2)(A), or 542

of the Housing Act of 1949, subtitle A of title III of the Cranston-

Gonzalez National Affordable Housing Act. Since these programs are

administered by the Secretary of Agriculture, HUD is not amending its

regulations to reflect the expanded scope of the Section 214

restrictions.

In addition to the changes discussed above, the Welfare Reform Act

made other amendments concerning immigration. This interim rule does

not implement these provisions of the Welfare Reform Act. This interim

rule only amends 24 CFR part 5, subpart E to incorporate the changes

made by the Immigration Reform Act. HUD and other responsible agencies

are developing regulations to implement the changes made by the Welfare

Reform Act. Responsible entities should not implement the Welfare

Reform Act provisions until the issuance of these implementing

regulations.

D. Nondiscrimination in the Implementation of Section 214

HUD reiterates the statement made in the March 20, 1995 final rule

that all regulatory procedures in implementation of Section 214 must be

administered in the uniform manner prescribed without regard to race,

national origin, or personal characteristics (e.g., accent, language

spoken, or familial association with a noncitizen).

II. Justification for Interim Rulemaking

It is HUD's policy to publish rules for public comment before their

issuance for effect, in accordance with its own regulations on

rulemaking found at 24 CFR part 10. Part 10 provides that prior public

procedure may be omitted if ``a statute expressly so authorizes'' (24

CFR 10.1). Section 577 of the Immigration Reform Act requires that the

Secretary of HUD, within 60 days of the Act's enactment, issue an

interim rule implementing the amendments made to Section 214. Further,

section 577 provides that the interim rule ``shall take effect upon

issuance.'' This interim rule implements the rulemaking requirement

contained in Section 577 of the Immigration Reform Act. Although HUD is

statutorily mandated to issue this interim rule for immediate effect,

it welcomes public comment. All comments will be considered in the

development of the final rule.

On October 30, 1996, the Department held a meeting at HUD

Headquarters on the subject of the Immigration Reform Act. HUD invited

to this meeting representatives of civil rights groups, public housing

agencies, private housing providers, and legal services groups to

present their views on the effect of the amendments to Section 214 made

by the Immigration Reform Act. The comments and concerns about the

Immigration Reform Act were taken into account during the development

of this interim rule. Organizations that participated in this meeting

included, among others, the Public Housing Authorities Directors

Association; the National Housing Law Project; the National Puerto

Rican Coalition; the National Association of Housing and Redevelopment

Authorities; the National Council of La Raza; and the Council of Large

Public Housing Authorities.

III. Findings and Certifications

Executive Order 12866, Regulatory Planning and Review

The Office of Management and Budget (OMB) reviewed this interim

rule under Executive Order 12866, Regulatory Planning and Review. OMB

determined that this interim rule is a ``significant regulatory

action,'' as defined in section 3(f) of the Order (although not

economically significant, as provided in section 3(f)(1) of the Order).

Any changes made to the interim rule subsequent to its submission to

OMB are identified in the docket file, which is available for public

inspection in the office of the Department's Rules Docket Clerk, Room

10276, 451 Seventh Street, SW, Washington, DC 20410-0500.

Unfunded Mandates Reform Act

The Secretary has reviewed this interim rule before publication and

by approving it certifies, in accordance

[[Page 60538]]

with the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532), that

this interim rule does not impose a Federal mandate that will result in

the expenditure by State, local, and tribal governments, in the

aggregate, or by the private sector, of $100 million or more in any one

year.

Regulatory Flexibility Act

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)) has reviewed and approved this interim rule, and in so

doing certifies that this interim rule will not have a significant

economic impact on a substantial number of small entities. As explained

in the preamble to the March 20, 1995 final rule, the implementation of

HUD's noncitizen requirements have only a minimal impact on small

housing project owners, small mortgagees, and small housing agencies.

The amendments made by this interim rule do not alter that

determination. This interim rule does not require the creation of new

procedures or impose significant additional costs on responsible

entities. Rather, the requirements of the interim rule can be satisfied

through the use of existing procedures. For example, the interim rule

prohibits responsible entities from making assistance available to a

noncitizen until the necessary documentation establishing eligible

immigration status is verified. This requirement can be fulfilled by

utilizing the existing verification procedures. Likewise, current

methods may be used to prorate the assistance provided to an eligible

mixed family receiving continued assistance.

Environmental Impact

A Finding of No Significant Impact with respect to the environment

has been made in accordance with HUD regulations at 24 CFR part 50 that

implement section 102(2)(C) of the National Environmental Policy Act of

1969 (42 U.S.C. 4332). The Finding of No Significant Impact is

available for public inspection during business hours in the Office of

the Rules Docket Clerk, Room 10276, Department of Housing and Urban

Development, 451 Seventh Street, SW, Washington, DC 20410-0500.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official under section 6(a)

of Executive Order 12612, Federalism, has determined that the policies

contained in this interim rule have no federalism implications, and

that the policies are not subject to review under the Order. This

interim rule addresses immigration, a topic exclusively the province of

the Federal government, and the effect is the direct result of the

status that imposes the restriction against assistance to noncitizens,

rather than a result of HUD's exercise of discretion in promulgating a

rule to implement the statute.

Executive Order 12606, The Family

The General Counsel, as the Designated Official under Executive

Order 12606, The Family, has determined that this interim rule does not

have the potential for significant impact on family formation,

maintenance, and general well-being, and, thus, is not subject to

review under the Order. The only families upon whom Section 214 and

HUD's implementing regulations have an impact are those containing

individuals with ineligible immigration status. Even for these

families, however, Section 214 and HUD's regulations strive to maintain

the unity of the family under the provisions concerning preservation

assistance to mixed families which provide for continued assistance for

certain categories of mixed families, and deferral of termination of

assistance and prorated assistance for other mixed families.

List of Subjects in 24 CFR Part 5

Administrative practice and procedure, Aged, Claims, Drug abuse,

Drug traffic control, Grant programs--housing and community

development, Grant programs--Indians, Grant programs--low and moderate

income housing, Indians, Individuals with disabilities,

Intergovernmental relations, Loan programs--housing and community

development, Low and moderate income housing, Mortgage insurance,

Penalties, Pets, Public housing, Rent subsidies, Reporting and

recordkeeping requirements, Social security, Unemployment compensation,

Wages.

Accordingly, 24 CFR part 5 is amended as follows:

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

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

follows:

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

Subpart E--Restrictions on Assistance to Noncitizens

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

follows:

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

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

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

(a) PHA opt-out. A PHA that is a responsible entity under this

subpart may elect not to comply with (``opt-out'' of) the requirements

of this subpart.

(b) PHA compliance. If the PHA elects to comply with this subpart,

the PHA:

(1) May initiate procedures to affirmatively establish or verify

the eligibility of a family under this section at any time at which the

PHA determines that such eligibility is in question, without regard to

position of the family member's family on the waiting list of the PHA;

(2) May affirmatively establish or verify the eligibility of a

family member in accordance with the procedures set forth in section

274A(b)(1) of the Immigration and Nationality Act; and

(3) Shall have access to any relevant information contained in the

INS SAVE system (or any successor thereto) that relates to any family

member applying for financial assistance.

(c) HUD not responsible due to PHA opt-out. HUD shall not bear any

responsibility in connection with compliance with the requirements of

Section 214 if a PHA elects not to comply with this subpart under

paragraph (a) of this section.

4. Section 5.508 is amended by revising paragraphs (b)(1), (b)(2),

(h)(2) and (h)(3) introductory text to read as follows:

Sec. 5.508 Submission of evidence of citizenship or eligible

immigration status.

* * * * *

(b) * * *

(1) For citizens, the evidence consists of a signed declaration of

U.S. citizenship. The responsible entity may request verification of

the declaration by requiring presentation of a United States passport,

resident alien card, registration card, social security card, or other

appropriate documentation.

(2) For noncitizens who are 62 years of age or older or who will be

62 years of age or older and receiving assistance under a Section 214

covered program on September 30, 1996 or applying for assistance on or

after that date, the evidence consists of:

(i) A signed declaration of eligible immigration status; and

(ii) Proof of age document.

* * * * *

(h) * * *

(2) Thirty-day extension period. Any extension of time, if granted,

shall not exceed thirty (30) days. The additional time provided should

be sufficient to

[[Page 60539]]

allow the individual the time to obtain the evidence needed. The

responsible entity's determination of the length of the extension

needed shall be based on the circumstances of the individual case.

(3) Grant or denial of extension to be in writing. The responsible

entity's decision to grant or deny an extension as provided in

paragraph (h)(1) of this section shall be issued to the family by

written notice. If the extension is granted, the notice shall specify

the extension period granted (which shall not exceed thirty (30) days).

If the extension is denied, the notice shall explain the reasons for

denial of the extension.

* * * * *

5. Section 5.510 is amended by revising paragraph (b) to read as

follows:

Sec. 5.510 Documents of eligible immigration status.

* * * * *

(b) Acceptable evidence of eligible immigration status. Acceptable

evidence of eligible immigration status shall be the original of a

document designated by INS as acceptable evidence of immigration status

in one of the six categories mentioned in Sec. 5.506(a) for the

specific immigration status claimed by the individual.

6. Section 5.512 is amended by revising paragraph (a) to read as

follows:

Sec. 5.512 Verification of eligible immigration status.

(a) General. Except as described in Secs. 5.501 and 5.514, no

individual or family applying for assistance may receive such

assistance prior to the verification of the eligibility of at least the

individual or one family member. Verification of eligibility consistent

with Sec. 5.514 occurs when the individual or family members have

submitted documentation to the responsible entity in accordance with

Sec. 5.508.

* * * * *

7. Section 5.514 is amended by:

a. Revising paragraph (b);

b. Revising paragraph (c)(1);

c. Revising paragraph (e)(1);

d. Removing paragraph (f)(2);

e. Redesignating paragraphs (f)(3) and (f)(4) as paragraphs (f)(2)

and (f)(3) respectively; and

f. Revising paragraph (f)(1), to read as follows:

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

* * * * *

(b) Restrictions on delay, denial, reduction or termination of

assistance. (1) Restrictions on reduction, denial or termination of

assistance for applicants and tenants. Assistance to an applicant or

tenant shall not be delayed, denied, reduced, or terminated, on the

basis of ineligible immigration status of a family member if:

(i) The primary and secondary verification of any immigration

documents that were timely submitted has not been completed;

(ii) The family member for whom required evidence has not been

submitted has moved from the assisted dwelling unit;

(iii) The family member who is determined not to be in an eligible

immigration status following INS verification has moved from the

assisted dwelling unit;

(iv) The INS appeals process under Sec. 5.514(e) has not been

concluded;

(v) Assistance is prorated in accordance with Sec. 5.520; or

(vi) Assistance for a mixed family is continued in accordance with

Secs. 5.516 and 5.518; or

(vii) Deferral of termination of assistance is granted in

accordance with Secs. 5.516 and 5.518.

(2) Restrictions on delay, denial, reduction or termination of

assistance pending fair hearing for tenants. In addition to the factors

listed in paragraph (b)(1) of this section, assistance to a tenant

cannot be delayed, denied, reduced or terminated until the completion

of the informal hearing described in paragraph (f) of this section.

(c) Events causing denial or termination of assistance. (1)

General. Assistance to an applicant shall be denied, and a tenant's

assistance shall be terminated, in accordance with the procedures of

this section, upon the occurrence of any of the following events:

(i) Evidence of citizenship (i.e., the declaration) and eligible

immigration status is not submitted by the date specified in

Sec. 5.508(g) or by the expiration of any extension granted in

accordance with Sec. 5.508(h);

(ii) Evidence of citizenship and eligible immigration status is

timely submitted, but INS primary and secondary verification does not

verify eligible immigration status of a family member; and

(A) The family does not pursue INS appeal or informal hearing

rights as provided in this section; or

(B) INS appeal and informal hearing rights are pursued, but the

final appeal or hearing decisions are decided against the family

member; or

(iii) The responsible entity determines that a family member has

knowingly permitted another individual who is not eligible for

assistance to reside (on a permanent basis) in the public or assisted

housing unit of the family member. Such termination shall be for a

period of not less than 24 months. This provision does not apply to a

family if the ineligibility of the ineligible individual was considered

in calculating any proration of assistance provided for the family.

* * * * *

(e) Appeal to the INS. (1) Submission of request for appeal. Upon

receipt of notification by the responsible entity that INS secondary

verification failed to confirm eligible immigration status, the

responsible entity shall notify the family of the results of the INS

verification, and the family shall have 30 days from the date of the

responsible entity's notification, to request an appeal of the INS

results. The request for appeal shall be made by the family

communicating that request in writing directly to the INS. The family

must provide the responsible entity with a copy of the written request

for appeal and proof of mailing.

* * * * *

(f) Informal hearing. (1) When request for hearing is to be made.

After notification of the INS decision on appeal, or in lieu of request

of appeal to the INS, the family may request that the responsible

entity provide a hearing. This request must be made either within 30

days of receipt of the notice described in paragraph (d) of this

section, or within 30 days of receipt of the INS appeal decision issued

in accordance with paragraph (e) of this section.

* * * * *

8. Section 5.516 is amended by revising the introductory text of

paragraph (c) to read as follows:

Sec. 5.516 Availability of preservation assistance to mixed families

and other families.

* * * * *

(c) Assistance available to other families in occupancy. Temporary

deferral of termination of assistance may be available to families

receiving assistance under a Section 214 covered program on June 19,

1995, and who have no members with eligible immigration status, as set

forth in paragraphs (c) (1) and (2) of this section.

* * * * *

9. Section 5.518 is amended by revising paragraphs (a), (b)(3) and

(b)(5) to read as follows:

Sec. 5.518 Types of preservation assistance available to mixed

families and other families.

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

continued

[[Page 60540]]

housing assistance if all of the following conditions are met (a mixed

family assisted under a Housing covered program must be provided

continued assistance if the family meets the following conditions):

(i) The family was receiving assistance under a Section 214 covered

program on June 19, 1995;

(ii) The family's head of household or spouse has eligible

immigration status as described in Sec. 5.506; and

(iii) The family does not include any person (who does not have

eligible immigration status) other than the head of household, any

spouse of the head of household, any parents of the head of household,

any parents of the spouse, or any children of the head of household or

spouse.

(2) Proration of continued assistance. A family entitled to

continued assistance before November 29, 1996 is entitled to continued

assistance as described in paragraph (a) of this section. A family

entitled to continued assistance after November 29, 1996 shall receive

prorated assistance as described in Sec. 5.520.

(b) * * *

(3) Time limit on deferral period. If temporary deferral of

termination of assistance is granted, the deferral period shall be for

an initial period not to exceed six months. The initial period may be

renewed for additional periods of six months, but the aggregate

deferral period for deferrals provided after November 29, 1996 shall

not exceed a period of eighteen months. The aggregate deferral period

for deferrals granted prior to November 29, 1996 shall not exceed 3

years. These time periods do not apply to a family which includes a

refugee under section 207 of the Immigration and Nationality Act or an

individual seeking asylum under section 208 of that Act.

* * * * *

(5) Determination of availability of affordable housing at end of

each deferral period. (i) Before the end of each deferral period, the

responsible entity must satisfy the applicable requirements of either

paragraph (b)(5)(i) (A) or (B) of this section. Specifically, the

responsible entity must:

(A) For Housing covered programs: Make a determination that one of

the two conditions specified in paragraph (b)(2) of this section

continues to be met (note: affordable housing will be determined to be

available if the vacancy rate is five percent or greater), the owner's

knowledge and the tenant's evidence indicate that other affordable

housing is available; or

(B) For Section 8 or Public Housing covered programs: Make a

determination of the availability of affordable housing of appropriate

size based on evidence of conditions which when taken together will

demonstrate an inadequate supply of affordable housing for the area in

which the project is located, the consolidated plan (if applicable, as

described in 24 CFR part 91), the responsible entity's own knowledge of

the availability of affordable housing, and on evidence of the tenant

family's efforts to locate such housing.

(ii) The responsible entity must also:

(A) Notify the tenant family in writing, at least 60 days in

advance of the expiration of the deferral period, that termination will

be deferred again (provided that the granting of another deferral will

not result in aggregate deferral periods that exceeds the maximum

deferral period). This time period does not apply to a family which

includes a refugee under section 207 of the Immigration and Nationality

Act or an individual seeking asylum under section 208 of that Act, and

a determination was made that other affordable housing is not

available; or

(B) Notify the tenant family in writing, at least 60 days in

advance of the expiration of the deferral period, that termination of

financial assistance will not be deferred because either granting

another deferral will result in aggregate deferral periods that exceed

the maximum deferral period (unless the family includes a refugee under

section 207 of the Immigration and Nationality Act or an individual

seeking asylum under section 208 of that Act), or a determination has

been made that other affordable housing is available.

* * * * *

10. Section 5.526 is revised to read as follows:

Sec. 5.526 Protection from liability for responsible entities and

State and local government agencies and officials.

(a) Protection from liability for responsible entities. Responsible

entities are protected from liability as set forth in Section 214(e)

(42 U.S.C 1436a(e)).

(b) Protection from liability for State and local government

agencies and officials. State and local government agencies and

officials shall not be liable for the design or implementation of the

verification system described in Sec. 5.512, as long as the

implementation by the State and local government agency or official is

in accordance with prescribed HUD rules and requirements.

Date: November 22, 1996.

Henry G. Cisneros,

Secretary.

[FR Doc. 96-30498 Filed 11-27-96; 8:45 am]

BILLING CODE 4210-32-P