Implementing Provisions of the Housing Opportunity Program Extension Act of 1996; and Revising Section 8 Certificate, Voucher, and Moderate Rehabilitation Admission and Occupancy Policies

SUMMARY: This proposed rule would amend the admission and occupancy

requirements for the Section 8 Rental Certificate, Rental Voucher, and

Moderate Rehabilitation Programs as follows: Make certain applicants

ineligible for admission if evicted from housing assisted under the

United States Housing Act of 1937; Terminate assistance to tenant-based

certificate and voucher participants evicted for serious lease

violations; Screen out illegal drug users and alcohol abusers; and

Terminate assistance to illegal drug users and alcohol abusers.

DATES: Comment due date: May 30, 1997.

ADDRESSES: Interested persons are invited to submit comments regarding

this proposed rule to the Rules Docket Clerk, Office of General

Counsel, Room 10276, Department of Housing and Urban Development, 451

Seventh Street, SW, Washington, DC 20410. 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 between 7:30 a.m. and 5:30 p.m.

weekdays at the above address.

FOR FURTHER INFORMATION CONTACT: Madeline Hastings, Associate Deputy

Assistant Secretary for the Office of Public and Assisted Housing

Operations, Room 4228, Department of Housing and Urban Development, 451

Seventh Street, SW, Washington, DC 20410; telephone number (202) 708-

1842. (This telephone number is not toll-free.) For hearing- and

speech-impaired persons, this number may be accessed via text telephone

(TTY) by calling the Federal Information Relay Service at (800) 877-

8339.

SUPPLEMENTARY INFORMATION:

I. Statutory Change and Related Change to Bar Admission of Certain

Evicted Tenants

The statutory foundation for the Section 8 program is the United

States Housing Act of 1937 (42 U.S.C. 1437a et seq.) (the Act). On

March 28, 1996, the Act was amended by the Housing Opportunity Program

Extension Act of 1996 (Pub. L. 104-120; 110 Stat. 834) (the Extension

Act). It makes an individual who has been evicted from housing assisted

under the United States Housing Act of 1937 (public housing, Indian

housing, Section 23, or any Section 8 program) for drug-related

criminal activity ineligible for admission to Section 8 housing for a

3-year period beginning from the date of the eviction. The Public

Housing Agency (HA) has the discretion, however, to determine that the

evicted individual's family is eligible for admission if the HA

determines that the evicted individual has successfully completed a

rehabilitation program approved by the HA or that the circumstances

leading to the eviction no longer exist (e.g., the individual involved

in drugs is no longer in the household because of incarceration). In

this proposed rule, HUD would interpret the 3-year period to be at

least 3 years, so that an HA can determine the period of time it

believes reasonable for particular types of drug-related criminal

activity, as long as that period is at least 3 years long.

The Extension Act also requires HAs to establish standards for

prohibiting occupancy in any Section 8 unit by any person who the HA

determines is illegally using a controlled substance, or whose pattern

of illegal use of a controlled substance or pattern of alcohol abuse

would interfere with the health, safety, or right to peaceful enjoyment

of the premises by other residents of the project. In this connection,

the Extension Act authorizes the HA administering the program to

determine whether an applicant has been rehabilitated from drug or

alcohol abuse.

In this proposed rule, HUD also proposes two related changes for

tenants evicted from assisted housing: (1) Tenants evicted from housing

assisted under the United States Housing Act of 1937 for serious lease

violations would be ineligible for admission to units assisted under

the Section 8 Rental Certificate, Rental Voucher, and Moderate

Rehabilitation Programs for an appropriate period of time; and (2)

Section 8 tenant-based certificate and voucher participants evicted for

serious lease violations would be ineligible for continued assistance

by the HA. For example, families evicted for a serious lease violation

(such as committing crimes against persons or property or other acts

that affect the health, safety, or right to peaceful enjoyment of the

premises by other residents) would be barred from admission to Section

8 housing for a specified period and, if applicable, be terminated from

the Rental Certificate or Voucher Program. HUD is also proposing a

similar requirement for the public housing program barring the

admission of residents evicted from housing assisted under the United

States Housing Act of 1937 for serious lease violations. These

proposals would facilitate efforts by HUD and HAs to eliminate crime

and to impose tougher expectations on Federally assisted tenants,

holding them responsible for their actions.

In order to determine the eligibility of an applicant under this

proposed rule, an HA needs to know whether the applicant was evicted

from housing assisted under the U.S. Housing Act of 1937 and whether

the eviction involved drug-related criminal activity. HUD is

specifically requesting public comment on ways HAs can share this

information with each other, and the best means to obtain information

on evictions from privately owned assisted projects such as Section 8

new construction projects.

II. Regulatory Reinvention

Consistent with Executive Order 12866 and President Clinton's

memorandum of March 4, 1995 to all Federal departments and agencies on

the subject of Regulatory Reinvention, HUD is reviewing all its

regulations to determine whether they can be eliminated, streamlined,

or consolidated with other regulations. As part of this review, this

proposed rule, at the final rule stage, may undergo revisions in

accordance with the President's regulatory reform initiatives. In

addition to comments on the substance of these regulations, HUD

welcomes comments on how this proposed rule may be made more

understandable and less burdensome.

III. Findings and Certifications

A. Paperwork Reduction Act

The proposed information collection requirements contained at

Secs. 882.514(g) and 982.553(b) of this rule have been submitted to the

Office of Management and Budget (OMB) for review, under section 3507(d)

of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

[[Page 15347]]

In accordance with 5 CFR 1320.5(a)(1)(iv), the Department is

setting forth the following concerning the proposed collection of

information:

(1) Title of the information collection proposal: Implementing

Provisions of the Housing Opportunity Program Extension Act of 1996;

and Revising Section 8 Certificate, Voucher, and Moderate

Rehabilitation Admission and Occupancy Policies.

(2) Summary of the collection of information: HAs have local

admission and subsidy termination policies that detail when applicants

are eligible, how applicants are selected, waiting list management,

denial of assistance to applicants, and termination of assistance to

participants. This rulemaking requires HAs to (1) deny admission

because of drug-related criminal activity and certain evictions from

housing assisted under the 1937 Housing Act, (2) terminate assistance

when a family is evicted from a tenant-based subsidy unit for serious

lease violations, and (3) establish admission and termination standards

concerning drug use and alcohol abuse.

(3) Description of the need for the information and its proposed

use: The information collected is needed to assure that subsidy is only

provided to eligible families, and to monitor compliance with HUD

Section 8 program admission and termination requirements authorized by

statute.

(4) Description of the likely respondents, including the estimated

number of likely respondents, and proposed frequency of response to the

collection of information: Respondents will be the 2500 HAs

administering the Section 8 program. The proposed frequency of

responses is once annually.

(5) Estimate of the total reporting and recordkeeping burden that

will result from the collection of information: HA admission and

termination policies are contained in the HA administrative plan. When

an HA first begins to administer the Section 8 program, the HA develops

an administrative plan in conjunction with its first funding

application. Thereafter, the HA updates the administrative plan

periodically on an as-needed basis (estimated not to exceed an average

of once a year). HUD approval of the administrative plan is not

required and it is maintained locally. Additional burden to HAs

required by this rule is minimal since the collections are a part of

the day-to-day operation of the HAs, the rule simply requires HAs to

consider additional factors when making admission and termination

determinations, HAs already update the administrative plan periodically

to reflect new statutory requirements and changes in local policies,

and the collection requirements for the administrative plan are already

included in the burden hours attributed to preparing a funding

application and periodically updating the administrative plan. The

reporting and recordkeeping burden for the application form HUD-52515

(which includes the administrative plan) were previously approved by

the Office of Management and Budget (OMB), and assigned OMB control

number 2577-0169, as follows:

----------------------------------------------------------------------------------------------------------------

Est. avg.

Number of Freg. of response time Est. annual

respondents response (Hours) burden (Hrs.)

----------------------------------------------------------------------------------------------------------------

Reporting Burden............................ 2,500 1 2.0 5000

----------------

Total Reporting Burden.................. ............... ............... ............... 5000

----------------------------------------------------------------------------------------------------------------

B. Regulatory Review

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

rule under Executive Order 12866, Regulatory Planning and Review,

issued by the President on September 30, 1993. OMB determined that this

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 in this rule subsequent

to its submission to OMB are identified in the docket file, which is

available for public inspection between 7:30 a.m. and 5:30 p.m. in the

Office of the Rules Docket Clerk, Office of General Counsel, Room

10276, Department of Housing and Urban Development, 451 Seventh Street,

SW, Washington, DC.

C. Impact on Small Entities

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

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

doing certifies that this proposed rule would not have a significant

economic impact on a substantial number of small entities. While this

rule would amend occupancy and tenant selection policies in the Section

8 Rental Certificate, Rental Voucher, and Moderate Rehabilitation

Programs, it would not have a significant economic impact on small

entities.

D. Environmental Impact

A Finding of No Significant Impact with respect to the environment

has been made 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. 4332). This Finding is available for public inspection

between 7:30 a.m. and 5:30 p.m. weekdays in the office of the Rules

Docket Clerk, Office of General Counsel, Room 10276, Department of

Housing and Urban Development, 451 Seventh Street, SW, Washington, DC.

E. Federalism Impact

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

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

contained in this proposed rule would 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.

As a result, this proposed rule is not subject to review under the

Order. The proposed rule would merely implement statutory and related

requirements with respect to admission and occupancy of housing funded

by the Federal Government.

F. Impact on the Family

The General Counsel, as the Designated Official under Executive

Order 12606, The Family, has determined that this proposed rule would

not have the potential for significant impact on family formation,

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

under the Order. This proposed rule would increase the safety and

security of families living in assisted housing. Since the impact of

this proposed rule on the family would be beneficial, no further review

is considered necessary.

G. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-

4;

[[Page 15348]]

approved March 22, 1995) (UMRA) establishes requirements for Federal

agencies to assess the effects of their regulatory actions on State,

local, and tribal governments, and the private sector. This proposed

rule would not impose any Federal mandates on any State, local, or

tribal governments, or on the private sector, within the meaning of the

UMRA.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers for the programs

that would be affected by this proposed rule are 14.855 (Vouchers),

14.856 (Moderate Rehabilitation) and 14.857 (Certificates).

List of Subjects

24 CFR Part 882

Grant programs--housing and community development, Homeless, Lead

poisoning, Manufactured homes, Rent subsidies, Reporting and

recordkeeping requirements.

24 CFR Part 982

Grant programs--housing and community development, Housing, Rent

subsidies, Reporting and recordkeeping requirements.

Accordingly, for the reasons stated in the preamble, parts 882 and

982 of title 24 of the Code of Federal Regulations, are proposed to be

amended as follows:

PART 882--SECTION 8 CERTIFICATE AND MODERATE REHABILITATION

PROGRAMS

1. The authority citation for part 882 continues to read as

follows:

Authority: 42 U.S.C. 1437f and 3535(d).

2. In Sec. 882.413, paragraph (b) is amended by adding a new

sentence after the first sentence, to read as follows:

Sec. 882.413 Responsibility of the Family.

* * * * *

(b) * * * No Family member may abuse alcohol in a way that may

interfere with the health, safety, or right to peaceful enjoyment of

the premises by other residents. * * *

* * * * *

3. Section 882.514 is amended as follows:

a. By revising paragraph (a)(2);

b. By redesignating paragraph (a)(3) as paragraph (a)(4);

c. By adding a new paragraph (a)(3);

d. By revising paragraph (g); and

e. By adding a new paragraph (h); to read as follows:

Sec. 882.514 Family participation.

(a) * * *

(2) A Family is ineligible for admission if:

(i) The Family contains any Family member evicted from housing

assisted under the 1937 Act for drug-related criminal activity during a

reasonable time period specified by the PHA, which is not less than 3

years from the date of the eviction. Notwithstanding the immediately

preceding sentence, the PHA may, in its discretion, determine that the

Family is eligible for admission if the PHA determines that the evicted

Family member who was engaged in drug-related criminal activity has

successfully completeed a rehabilitation program approved by the PHA or

that the circumstances leading to the eviction no longer exist (e.g.,

the evicted Family member involved in drugs is no longer in the

household because of incarceration); or

(ii) The Family contains any Family member evicted from housing

assisted under the 1937 Act for other serious violation of the lease

during a reasonable time period specified by the PHA, unless the PHA

determines that the circumstances leading to the eviction no longer

exist.

(3) A PHA may determine to deny assistance to an applicant Family

because one or more Family members have engaged in violent criminal

activity or drug-related criminal activity as defined in Sec. 882.413,

illegal use of a controlled substance, or abuse of alcohol that may

interfere with the health, safety, or right to peaceful enjoyment of

the premises by other residents. See paragraph (g) of this section.

* * * * *

(g) Considerations in certain denials and terminations. (1) The PHA

must establish standards for denying program assistance if the PHA

determines that:

(i) Any Family member is illegally using a controlled substance; or

(ii) There is reasonable cause to believe that a Family member's

illegal use or pattern of illegal use of a controlled substance or

abuse or pattern of abuse of alcohol may interfere with the health,

safety, or right to peaceful enjoyment of the premises by other

residents.

(2) The PHA must establish standards for determining whether to

terminate program assistance if the PHA determines that:

(i) Any Family member is illegally using a controlled substance; or

(ii) A Family member's use of a controlled substance or abuse of

alcohol interferes with the health, safety, or right to peaceful

enjoyment of the premises by other residents.

(3) In determining whether to deny or terminate program assistance

for illegal use or pattern of use of a controlled substance or for

abuse or a pattern of abuse of alcohol, by a Family member, the PHA may

consider whether the person:

(i) Is no longer engaging in illegal use of a controlled substance

or in abuse of alcohol (as applicable); or

(ii) Has successfully completed a supervised drug or alcohol

rehabilitation program (as applicable), has otherwise been

rehabilitated successfully, or is participating in a supervised drug or

alcohol rehabilitation program (as applicable).

(4) The PHA may require a Family member who has engaged in the

illegal use of a controlled substance, or in alcohol abuse activity

that interfered with the health, safety, and peaceful enjoyment of the

premises by other residents, to submit evidence of participation in, or

successful completion of, a supervised drug or alcohol rehabilitation

program (as applicable) as a condition to being allowed to reside in

the unit.

(5) At any time, the HA may deny program assistance to an applicant

or terminate program assistance to a participant Family if the PHA

determines that any Family member has engaged in drug-trafficking or

violent criminal activity. In determining whether to deny or terminate

program assistance based on drug-related criminal activity, violent

criminal activity, or alcohol abuse, the PHA may deny or terminate

program assistance if the preponderance of evidence indicates that a

Family member has engaged in such activity, regardless of whether the

Family member has been arrested or convicted.

(h) Inapplicability to a program administered by an IHA. Paragraphs

(a)(2)(i) and (g)(1) through (g)(5) of this section are not applicable

to a program administered by an IHA.

PART 982--TENANT-BASED ASSISTANCE UNDER THE SECTION 8 RENTAL

CERTIFICATE PROGRAM AND THE SECTION 8 RENTAL VOUCHER PROGRAM

4. The authority citation for part 982 continues to read as

follows:

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

5. In Sec. 982.201, paragraph (a) is revised to read as follows:

Sec. 982.201 Eligibility.

(a) When applicant is eligible: general. (1) The HA may only admit

an eligible family to a program. To be eligible, the

[[Page 15349]]

applicant must be a ``family'', must be income-eligible, and the

members of the family must be citizens or noncitizens who have eligible

immigration status as determined in accordance with 24 CFR part 5.

(2) The family must not contain any family member evicted from

housing assisted under the 1937 Act for drug-related criminal activity

during a reasonable time period specified by the HA, which is not less

than 3 years from the date of the eviction. Notwithstanding the

immediately preceding sentence, the HA may, in its discretion,

determine that the family is eligible for admission if the HA

determines that the evicted family member who was engaged in drug-

related criminal activity has successfully completed a rehabilitation

program approved by the HA or that the circumstances leading to the

eviction no longer exist (e.g., the individual involved in drugs is no

longer in the household because the person is incarcerated).

(3) The family must not contain any family member evicted from

housing assisted under the 1937 Act for other serious violation of the

lease during a reasonable time period specified by the HA, unless the

HA determines that the circumstances leading to the eviction no longer

exist.

(4) Paragraph (a)(2) of this section is not applicable to a program

administered by an IHA.

* * * * *

6. Section 982.551 is amended by redesignating paragraph (m) as

paragraph (n), and by adding a new paragraph (m), to read as follows:

Sec. 982.551 Obligations of participant.

* * * * *

(m) Alcohol abuse by family members. The members of the family may

not abuse alcohol in a way that may interfere with the health, safety,

or right to peaceful enjoyment of the premises by other residents.

* * * * *

7. Section 982.552 is amended as follows:

a. By removing paragraph (b)(2);

b. By redesignating paragraphs (b)(3) through (b)(10) as paragraphs

(b)(2) through (b)(9), respectively;

c. By redesignating paragraph (f) as paragraph (h); and

d. By adding new paragraphs (f) and (g); to read as follows:

Sec. 982.552 HA denial or termination of assistance for family.

* * * * *

(f) Eviction from 1937 Act housing: Requirement to deny admission.

See Sec. 982.201(a) for a statement of the circumstances in which the

HA must deny program assistance for an applicant if any family member

has been evicted from housing assisted under the 1937 Act.

(g) Eviction for serious lease violation: Requirement to terminate

assistance. The HA must terminate program assistance for a participant

family (i.e., all family members) if the family is evicted from housing

assisted under the program for serious violation of the lease.

* * * * *

8. Section 982.553 is revised to read as follows:

Sec. 982.553 Crime or alcohol abuse by family members.

(a) Drug-trafficking or violent criminal activity: Authority to

deny admission or terminate assistance. At any time, the HA may deny

program assistance to an applicant or terminate program assistance to a

participant family if the HA determines that any family member has

engaged in drug-trafficking or violent criminal activity.

(b) Illegal drug use and alcohol abuse: Requirement to establish

standards for denial of admission or termination of assistance. (1) The

HA must establish standards for denying program assistance if the HA

determines that:

(i) Any family member is illegally using a controlled substance; or

(ii) There is reasonable cause to believe that a family member's

illegal use or pattern of illegal use of a controlled substance or

abuse or pattern of abuse of alcohol may interfere with the health,

safety, or right to peaceful enjoyment of the premises by other

residents.

(2) The HA must establish standards for determining whether to

terminate program assistance if the HA determines that:

(i) Any family member is illegally using a controlled substance; or

(ii) A family member's use of a controlled substance or abuse of

alcohol interferes with the health, safety, or right to peaceful

enjoyment of the premises by other residents.

(3) In determining whether to deny or terminate program assistance

for illegal use or pattern of use of a controlled substance or for

abuse or pattern of abuse of alcohol by a family member, the HA may

consider whether the person:

(i) Is no longer engaging in illegal use of a controlled substance

or in abuse of alcohol (as applicable); or

(ii) Has successfully completed a supervised drug or alcohol

rehabilitation program (as applicable), has otherwise been

rehabilitated successfully, or is participating in a supervised drug or

alcohol rehabilitation program (as applicable).

(4) The HA may require a family member who has engaged in the

illegal use of a controlled substance, or in alcohol abuse activity

that interfered with the health, safety, and peaceful enjoyment of the

premises by other residents, to submit evidence of current

participation in, or successful completion of, a supervised drug or

alcohol rehabilitation program (as applicable) as a condition to being

allowed to reside in the unit.

(c) Eviction for drug-related criminal activity from 1937 Act

housing: Requirement to deny admission. See Sec. 982.201(a) for a

statement of the circumstances in which the HA must deny program

assistance for an applicant if any family member has been evicted from

housing assisted under the 1937 Act for drug-related criminal activity.

(d) Evidence of criminal activity or alcohol abuse. In determining

whether to deny or terminate program assistance based on drug-related

criminal activity, violent criminal activity, or alcohol abuse, the HA

may deny or terminate program assistance if the preponderance of

evidence indicates that a family member has engaged in such activity,

regardless of whether the family member has been arrested or convicted.

(e) Inapplicability to a program administered by an IHA. Paragraph

(b) of this section is not applicable to a program administered by an

IHA.

Dated: March 4, 1997.

Kevin Emanuel Marchman,

Acting Assistant Secretary for Public and Indian Housing.

[FR Doc. 97-7999 Filed 3-28-97; 8:45 am]

BILLING CODE 4210-33-P