Public Housing Lease and Grievance Procedures

SUMMARY: On May 22, 1995 (60 FR 27058), HUD published a rule for public

comment proposing to amend its regulations governing public notice and

comment requirements and public housing lease and grievance procedures.

This rule finalizes the policies set forth in the May 22, 1995 proposed

rule. Specifically, this final rule clarifies that HUD is not required

to use notice and comment rulemaking for issuance of a due process

determination. This rule also authorizes Public Housing Agencies (PHAs)

to bypass judicial eviction procedures, if the law of the jurisdiction

permits eviction through administrative action. Additionally, this

final rule corrects a typographical error currently contained in 24 CFR

part 966.

EFFECTIVE DATE: April 25, 1996.

FOR FURTHER INFORMATION CONTACT: Linda Campbell, Director, Occupancy

Division, Room 4206, Department of Housing and Urban Development, 451

Seventh Street SW., Washington, D.C. 20410; Telephone numbers (202)

708-0744; 1-800-877-8339 (Federal Information Relay Service TTY).

(Other than the ``800'' number, these are not toll-free numbers.)

SUPPLEMENTARY INFORMATION:

I. Background

A. The May 22, 1995 Proposed Rule

On May 22, 1995 (60 FR 27058), HUD published for public comment a

rule proposing to revise HUD's regulations at 24 CFR part 10, governing

public notice and comment requirements, and 24 CFR part 966, governing

public housing lease and grievance procedures.

Under 42 U.S.C. 1437d(k), a housing authority is generally required

to provide a tenant with the opportunity for an administrative hearing

before the commencement of eviction proceedings in the local landlord-

tenant courts. The statute and HUD's implementing regulations at 24 CFR

part 966 state that for certain criminal-related evictions the housing

authority may bypass the administrative hearing. However, HUD must

first make a determination that local law requires a pre-eviction court

hearing that provides the basic elements of due process.

In HUD's view, the issuance of a due process determination is not a

rule, and is therefore not subject to 24 CFR part 10's notice and

comment rulemaking requirements. However, in its decision in Yesler

Terrace Community Council v. Cisneros, the Ninth Circuit held that the

due process determination for the State of Washington was a rule to

which part 10 applied. The Yesler decision has meant that Public

Housing Agencies (PHAs) in the States comprising the Ninth Circuit

cannot rely on the HUD due process determinations issued for those

States. Even for jurisdictions outside the Ninth Circuit, the decision

in the Yesler case will inevitably lead to dispute and litigation

concerning the ability of PHAs to rely on a HUD due process

determination. In order to remedy this serious situation, the May 22,

1995 rule proposed to amend part 10 to clarify that the issuance of a

due process determination does not require prior public procedure.

The May 22, 1995 rule also proposed to amend 24 CFR part 966. The

amendment would permit PHAs to evict without bringing a court action if

the law of the jurisdiction permits eviction by administrative action,

after a due process administrative hearing, but does not require a

court determination of the rights and liabilities of the parties. This

proposed amendment was designed to avoid the necessity for duplicative

administrative and judicial hearings.

The May 22, 1995 proposed rule described in detail the amendments

to 24 CFR parts 10 and 966.

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

The public comment period on the proposed rule expired on July 21,

1995. By close of business on that date, a total of 8 comments had been

received. Six of the eight commenters expressed support for the May 22,

1995 proposed rule and urged its adoption without change. As a result

of this positive public response, HUD has decided to adopt the May 22,

1995 proposed rule without change. A representative comment read:

[Our organization] strongly supports the proposed amendments to

regulations governing eviction from public and Indian housing * * *.

Granting these administrative hearings to persons engaged in serious

criminal activity slows down the eviction process considerably,

adversely affecting the quality of life in our developments for law-

abiding families * * *. We welcome the initiative taken by the

Department of Housing and Urban Development * * *. This will provide

support to the Housing Authorit[ies] in [their] efforts to

expeditiously evict persons engaged in criminal activities.

The other two commenters were opposed to the proposed amendment to

part 966 which would permit certain PHAs to evict through

administrative action. Both commenters believed that the proposed rule,

by authorizing non-judicial evictions, would eliminate vital

protections of the tenant's rights. For example, the commenters worried

about the lack of a legally trained, impartial, presiding officer at

administrative hearings. The commenters were also concerned about the

lack of subpoena power in administrative eviction actions.

HUD, while recognizing that there are substantive differences

between administrative and judicial proceedings, does not agree with

the commenters. This final rules provides adequate safeguards against

wrongful evictions. Only PHAs located in States which authorize

administrative evictions will be able to bypass judicial eviction

procedures. The administrative hearings will have to comply with

Constitutional due process requirements, as well as the grievance

hearing procedures set forth at 24 CFR part 966. Additionally, the

administrative determinations will be subject to review by the State's

courts.

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

Paragraph (l)(3) of Sec. 966.4 establishes the requirements for

lease termination notices to public housing tenants. Paragraph

(l)(3)(ii), which requires that the notice inform the tenant of the

right to examine PHA documents directly relevant to the termination or

eviction, contains a cross-reference to Sec. 944.4(m). The cross-

reference is incorrect, and should instead refer to Sec. 966.4(m). This

final rule makes the necessary correction.

II. Other Matters

A. Impact on the Environment

In accordance with 40 CFR 1508.4 of the regulations of the Council

on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations,

the policies and procedures contained in this rule relate only to HUD

administrative procedures and, therefore, are categorically excluded

from the requirements of the National Environmental Policy Act.

B. Federalism Impact

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

of Executive Order 12612, Federalism, has

[[Page 13273]]

determined that the policies contained in this final rule will not have

substantial direct effects on States or their political subdivisions,

or the relationship between the Federal government and the States, or

on the distribution of power and responsibilities among the various

levels of government.

This final rule clarifies that HUD is not required to use notice

and comment rulemaking procedures for issuance of a due process

determination. Furthermore, this rule permits PHAs to evict without

bringing a court action, if the law of the jurisdiction permits

eviction by administrative action and does not require a court

determination of the rights and liabilities of the parties. This final

rule will effect no changes in the current relationships between the

Federal government, the States and their political subdivisions.

C. Impact on the Family

The General Counsel, as the Designated Official under Executive

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

have potential for significant impact on family formation, maintenance,

and general well-being, and, thus, is not subject to review under this

order. No significant change in existing HUD policies or programs will

result from promulgation of this final rule, as those policies and

programs relate to family concerns.

D. Regulatory Flexibility Act

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

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

certifies that this rule will not have a significant impact on a

substantial number of small entities. This final rule merely concerns

HUD's public housing lease and grievance procedures, and will not have

any meaningful economic impact on any entity.

List of Subjects

24 CFR Part 10

Administrative practice and procedure.

24 CFR Part 966

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

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

PART 10--RULEMAKING: POLICY AND PROCEDURES

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

follows:

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

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

follows:

Sec. 10.3 Applicability.

* * * * *

(c) This part is not applicable to a determination by HUD under 24

CFR Part 966 (public housing) or 24 CFR Part 950 (Indian housing) that

the law of a jurisdiction requires that, prior to eviction, a tenant be

given a hearing in court which provides the basic elements of due

process (``due process determination'').

PART 966--LEASE AND GRIEVANCE PROCEDURES

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

follows:

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

4. Section 966.4 is amended by revising the first two sentences in

paragraph (l)(3)(ii) and by revising paragraph (l)(4) to read as

follows:

Sec. 966.4 Lease requirements.

* * * * *

(l) * * *

(3) * * *

(ii) The notice of lease termination to the tenant shall state

specific grounds for termination, and shall inform the tenant of the

tenant's right to make such reply as the tenant may wish. The notice

shall also inform the tenant of the right (pursuant to Sec. 966.4(m))

to examine PHA documents directly relevant to the termination or

eviction. * * *

* * * * *

(4) How tenant is evicted. The PHA may evict the tenant from the

unit either:

(i) By bringing a court action or;

(ii) By bringing an administrative action if law of the

jurisdiction permits eviction by administrative action, after a due

process administrative hearing, and without a court determination of

the rights and liabilities of the parties. In order to evict without

bringing a court action, the PHA must afford the tenant the opportunity

for a pre-eviction hearing in accordance with the PHA grievance

procedure.

* * * * *

5. In Sec. 966.51, paragraph (a)(2) is amended by redesignating

paragraph (a)(2)(ii) as paragraph (a)(2)(iv) and adding new paragraphs

(a)(2)(ii) and (a)(2)(iii) to read as follows:

Sec. 966.51 Applicability.

(a) * * *

(2) * * *

(ii) The issuance of a due process determination by HUD is not

subject to 24 CFR part 10, and HUD is not required to use notice and

comment rulemaking procedures in considering or issuing a due process

determination.

(iii) For guidance of the public, HUD will publish in the Federal

Register a notice listing the judicial eviction procedures for which

HUD has issued a due process determination. HUD will make available for

public inspection and copying a copy of the legal analysis on which the

determinations are based.

* * * * *

Dated: March 12, 1996.

Henry G. Cisneros,

Secretary.

[FR Doc. 96-7061 Filed 3-25-96; 8:45 am]

BILLING CODE 4210-32-P