One-Strike Screening and Eviction for Drug Abuse and Other Criminal Activity

SUMMARY: This proposed rule would amend 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

recent statutory amendments. These amendments give Public Housing

Agencies (PHAs) and assisted housing owners the tools for adopting and

implementing fair, effective, and comprehensive policies for denying

admission to 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: Comments Due Date: Comments on the proposed rule and the

proposed information collection requirements are due on or before

September 21, 1999.

ADDRESSES: Submit written 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. Comments should refer to the above docket number and title. A

copy of each comment submitted will be available for public inspection

and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above

address. Facsimile (FAX) comments will not be accepted.

FOR FURTHER INFORMATION CONTACT: For Section 8 certificate, voucher,

and moderate rehabilitation programs--Gerald J. Benoit, Director, Real

Estate Performance and Housing Division, Office of Public and Indian

Housing, Department of Housing and Urban Development, Room 4210, 451

Seventh Street, SW, Washington, DC 20410; telephone (202) 708-0477. For

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.

For the Section 8 project-based programs `` Willie Spearmon,

Director, Office of Multifamily Business Products, Office of Housing,

Department of Housing and Urban Development, Room 6134, 451 Seventh

Street, SW, Washington, DC 20410; telephone (202) 708-3000.

Only the Public and Indian Housing Resource Center number is toll-

free. Persons with hearing or speech impairments may access these

numbers via TTY by calling the toll-free Federal Information Relay

Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

President Clinton, in his 1996 State of the Union address, proposed

the ``one strike and you're out'' policy. The President challenged

local housing authorities and tenant associations to stop criminal gang

members and drug dealers who were destroying the lives of decent

tenants. In response to the President's ``One Strike'' mandate, HUD

expeditiously issued guidelines and procedures and conducted extensive

training for PHAs around the country. Public housing agencies,

localities, police departments and judges have all responded to the

President's call. Public housing communities are better, safer places

because of their efforts.

It is critical that assisted housing owners have the same

opportunities to fight criminal activity, so that residents in their

communities can also live in peace. This proposed rule provides for

that broadened authority and responsibility. The rule is intended to

give PHAs and assisted housing owners the tools for adopting and

implementing fair, effective, and comprehensive policies for both crime

prevention and enforcement. Crime prevention will be advanced by the

authority to screen out those who engage in illegal drug use or other

criminal activity, and enforcement will be advanced by the authority to

evict and terminate assistance for persons who participate in criminal

activity.

In 1996, the Housing Opportunity Program Extension Act (Pub. L.

104-120, 110 Stat. 834-846, approved March 28, 1996) (``the Extension

Act'') amended the United Stated Housing Act of 1937 (42 U.S.C. 1437a,

et seq.) (``the 1937 Act''). The Extension Act added significant crime

and security protections for public housing and section 8 residents. It

made an individual who has been evicted from public housing or any

Section 8 program for drug-related criminal activity ineligible for

admission to public housing and the section 8 programs for a three-year

period, beginning from the date of eviction. The evicted family becomes

eligible for re-admission, however, if the individual who engaged in

the activity has successfully completed a rehabilitation program

approved by the PHA or if the PHA determines that the circumstances

leading to the eviction no longer exist.

The Extension Act also required PHAs to establish standards that

prohibit occupancy in any public housing unit or participation in a

section 8 tenant-based program by any person the PHA determines to be

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 development. In this connection, the Extension

Act authorized the PHA administering the program to determine whether

an applicant has been rehabilitated from drug or alcohol abuse. In

addition, the Extension Act provided PHAs the opportunity to access

criminal records for public housing applicants and residents.

HUD issued a variety of guidance on implementing the Extension Act

(PIH Notice 96-16, issued April 12, 1996 and PIH Notice 96-27, issued

May 15, 1996). HUD published proposed rules for the section 8 tenant-

based and moderate rehabilitation programs on March 31, 1997 (62 FR

15346) and for the public housing program on May 9, 1997 (62 FR 25728).

Sections 575-579 of the Quality Housing and Work Responsibility Act

of 1998 (Public Law 105-276, approved Oct. 21, 1998, 112 Stat. 2634-

2643) (``the Public Housing Reform Act'' or ``the 1998 Act'') revised

provisions of the 1937 Act (sections 6 and 16) and created other

statutory authority to expand crime and security provisions to most

federally assisted housing. Instead of issuing a final rule on the

admission and eviction provisions of the Extension Act, HUD is

publishing this new proposed rule on the provisions as they exist after

the revision to the drug abuse and criminal activity requirements made

by the Public Housing Reform Act.

The 1998 Act revised the prohibition on admitting families for

three years because of eviction from public housing or Section 8 units

for drug-related criminal activity to cover admissions to

[[Page 40263]]

(and evictions from) Section 202, Section 811, Section 221(d)(3) BMIR,

Section 236, and Section 514/515 rural housing projects. In addition,

the 1998 Act (section 578(a)) added the obligation for project owners--

including PHAs that administer public housing--to deny admission to sex

offenders who are subject to a lifetime registration requirement under

a State sex offenders' registration program. The FY 1999 appropriations

act (Section 428 of Public Law 105-276, 112 Stat. 2511) added a new

paragraph (f) to section 16 of the 1937 Act to bar persons convicted of

manufacturing or producing methamphetamine from public housing and

Section 8 assisted housing where the PHA determines who is admitted.

An additional crime and safety provision was added to the 1937 Act

by the Personal Responsibility and Work Opportunity Act of 1996 (Public

Law 104-193, approved August 22, 1996; 110 Stat. 2105, 2348). Section

903 of that Act amended the 1937 Act (42 U.S.C. 1437f(d)(1) and

1437d(l)) to add as a grounds for termination of tenancy in the public

housing and Section 8 assistance programs fleeing to avoid prosecution,

or custody or confinement after conviction, for a felony (or a high

misdemeanor in New Jersey). Violating a condition of probation or

parole imposed under Federal or State law is also grounds for

termination of tenancy under that provision. That provision also

created the obligation (in a new section 27 of the 1937 Act) for PHAs

to provide Federal, State or local law enforcement officials with

information concerning assistance recipients whom the officials are

pursuing for violating parole or fleeing to avoid prosecution.

II. Applicability

This proposed rule would implement the statutory provisions

described above. However, not all of the statutory provisions apply to

all of the programs covered by this rule. The chart below describes

which provisions apply to which programs. Until this rule is issued for

effect, the provisions of this rule are not effective. However, the

following provisions of the recent statutory amendments are already in

effect: (1) the drug treatment facility check provision of section

575(e) of the 1998 Act, which applies to public housing only, and (2)

the methamphetamine production provision of section 428 of the Fiscal

Year 1999 appropriation act. Both of these provisions were described as

immediately applicable in the Initial Guidance Notice on the 1998 Act,

published in the Federal Register on February 18, 1999 (64 FR 8192).

The safety and security provisions of the Extension Act remain in

effect, as described in PIH Notice 96-27.

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III. Subjects This Rule Covers

A. Ineligibility of Persons Involved in Drug or Alcohol Abuse

The rule requires PHAs and owners of federally assisted housing to

develop standards that prohibit admission of any household with a

member who (1) the PHA or owner has determined is engaged in illegal

drug use; or (2) the PHA or owner has reasonable cause to believe is

engaged in illegal drug use or alcohol abuse (or pattern of abuse) that

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

other residents of the development. With respect to households already

participating in a federally assisted housing program, the rule

requires PHAs and owners to develop occupancy standards or lease

provisions that allow the PHAs and owners to terminate tenancy or

assistance of households with a member engaged in such conduct. The

1998 amendments of 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. With respect to

a PHA or owner's discretion to consider rehabilitation for a household

member with the offending substance abuse problem, the rule would

permit a PHA or owner to hold the whole household responsible for that

member's successful rehabilitation as a condition for continued

occupancy and avoidance of eviction.

B. Ineligibility of Persons Convicted of Producing Methamphetamine

Individuals convicted of manufacturing or producing methamphetamine

are ineligible for public housing, Section 8 tenant-based assistance,

and Section 8 project-based assistance administered by a PHA, in

accordance with section 428 of the HUD appropriations act for FY 1999

(amending section 16 of the 1937 Act). The restriction applies to

persons convicted of producing methamphetamine in a building or complex

assisted under the public housing or Section 8 programs. PHAs are

required by the statute and this rule (e.g., Secs. 966.4(f)(5)(i)(B),

982.310(c), 982.553(b)(1)(ii)) to establish standards that make these

persons ineligible for admission and require their immediate

termination of tenancy.

C. Termination of Tenancy of Fleeing Felons

Owners of public housing and Section 8 assisted housing are

authorized to terminate the tenancy of individuals who are fleeing to

avoid prosecution or to avoid custody or confinement after conviction

of a crime or attempt to commit a crime, as described above (e.g.,

Secs. 966.4(f)(5)(ii)(B) and 982.553(b)(2)(ii)). The crimes covered are

those that are felonies under the laws of the place from which the

individual flees (or, in the case of the State of New Jersey, a high

misdemeanor). In addition, the rule permits owners to terminate the

tenancy of individuals who violate a condition of probation or parole

imposed under Federal or State law. In order to implement this

provision, the proposed rule requires PHAs and Section 8 housing owners

to amend their leases to provide for termination under these

circumstances.

D. Criminal Records from Law Enforcement Agencies

PHA Access to Records

PHAs may access criminal conviction records from the National Crime

Information Center, police departments, and other law enforcement

agencies for purposes of applicant screening, lease enforcement, and

eviction. PHAs may access such records for adult applicants and tenants

of public housing and adult applicants and participants in the PHA's

Section 8 tenant-based programs. In addition, they may access records

in order to screen applicants or evaluate tenants for owners of

project-based Section 8 housing programs. In order to access an

applicant's or tenant's criminal conviction record, the PHA must

provide the law enforcement agency with a consent form signed by the

applicant or tenant.

Owners' Access to Records

Owners of project-based section 8 developments, including owners of

project-based certificate program and moderate rehabilitation program

developments, may request a PHA to obtain criminal records and perform

determinations for the owner regarding screening applicants, lease

enforcement, or eviction for developments located in the PHA's

jurisdiction. The owner must provide the PHA with a consent form signed

by the applicant or tenant. When the owner makes such a request, the

PHA must obtain the applicant or tenant's criminal record from the

appropriate law enforcement agency. The PHA must not give the criminal

record, or disclose its content, to the owner. Instead, the PHA must

use the record to screen the applicant or evaluate the tenant based on

the owner's standards for admission and occupancy. The PHA may charge

the owner a fee for both obtaining the record and performing the

screening and evaluation services.

E. Records of Sex Offenders Subject to a Lifetime Registration

Requirement

This proposed rule would implement the requirement that PHAs and

owners of federally assisted housing prohibit admission of any

household that includes a person subject to a lifetime registration

requirement under a State sex offender registration program.

This provision requires that, in addition to any criminal records

check a PHA may conduct, the PHA also must make further inquiries, as

necessary, with State and local agencies to determine whether an

applicant is subject to a lifetime registration requirement under a

State sex offender registration program. (State and local agencies

responsible for collecting criminal history record information or

information on persons required to register as sex offenders are

required to comply with PHA requests for such information.) The PHA

must make this determination for owners of other federally assisted

housing if the housing is located in the PHA's jurisdiction and the

owner requests that the PHA assist in this way. As with other criminal

records obtained by the PHA on behalf of an owner pursuant to section

6(q) of the 1937 Act, the PHA must not release the information to the

owner but must screen the applicant or evaluate the tenant using the

owner's criteria. The PHA may charge a fee for this service.

F. Records From Drug Abuse Treatment Facilities--Applicable to Public

Housing Only

The Public Housing Reform Act authorizes PHAs to obtain limited

information concerning public housing applicants from drug abuse

treatment facilities. A PHA may make an inquiry to a drug abuse

treatment facility only if it either makes the same inquiry with

respect to all applicants or makes inquiry concerning applicants with a

prior criminal record or prior tenancy showing the applicant engaged in

destruction of property, violent activity against another person or

interfered with another tenant's peaceful enjoyment of the premises. To

obtain information from a drug treatment facility, the PHA must provide

the facility with a written consent form signed by the individual

applicant. The PHA may only inquire whether the drug abuse treatment

facility reasonably believes that the individual is currently using

illegal drugs.

[[Page 40267]]

G. Records Management

PHAs must establish a records management system that ensures that

criminal records and records from drug abuse treatment facilities are

maintained confidentially, are not misused or improperly disseminated,

and are destroyed within the statutorily prescribed time frames. The

statute requires the imposition of a fine in the event that any PHA

agent obtains criminal records under false pretenses or discloses any

such information to anyone not legally entitled to such information.

The rule provides that records must not be kept in the applicant or

tenant file and that once the record is no longer needed it is

destroyed.

Information obtained from public records or obtained from law

enforcement agencies independent of this authority is not subject to

the restrictions on disclosure imposed by this rule.

H. Definition of Person With Disabilities

The 1998 Act amended the 1937 Act (at 42 U.S.C. 1437a(b)(3)(E)) by

adding a new sentence to the definition of a person with a disability

which states, ``Notwithstanding any other provision of law, no

individual shall be considered a person with disabilities, for purposes

of eligibility for low-income housing * * * solely on the basis of any

drug or alcohol dependence.'' This new statutory language is already

included in the Department's current definition of person with

disabilities (Sec. 5.403(a)), since the rule refers to the statute. The

statutory definition in the 1937 Act includes reference to the

definition of disability in section 223(d) of the Social Security Act.

The Social Security Administration (SSA) implements that provision

through regulations found at 20 CFR 404.1535, which exclude individuals

whose alcohol or drug addiction is a contributing factor material to

the determination of disability. The SSA rule states that a person is

considered disabled if the disabling physical and mental limitations

would persist upon discontinuation of drugs or alcohol abuse. (20 CFR

404.1535(b)(2)).

As required by the 1998 Act, the Department consulted with the

Departments of Justice, Health and Human Services and the Social

Security Administration, and reviewed pertinent regulations related to

the definition of disability. The Department is satisfied that the

statutory definition of ``person with disabilities'' included in the

existing rule incorporates the Social Security Administration's (SSA)

definition of disability located at section 223(d) of the Social

Security Act, and that the SSA's rule that excludes individuals whose

alcohol or drug addiction is a contributing material factor to their

disability is appropriate to apply to disability determinations under

HUD programs.

I. Compliance With Civil Rights Requirements

In developing their policies for screening and eviction under this

rule, PHAs and owners are, of course, bound to comply with

nondiscrimination and equal opportunity requirements, as provided in 24

CFR 5.105.

V. Findings and Certifications

Paperwork Reduction Act

(a) The proposed information collection requirements contained at

Secs. 5.853, 5.854, 5.855, 5.902, 5.903, 882.517, 960.204, and 982.553

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). 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.

(b) In accordance with 5 CFR 1320.5(a)(1)(iv), HUD estimates that

the total reporting and recordkeeping burden that will result from the

proposed collection of information as follows:

Reporting Burden

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

Est. average

Section reference Number of response/freq. Est. annual Burden (hours)

respondents of response time (hours)

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

5.853, 5.854, 5.855, 882.517, 982.553: Standards 4,500 1 30 135,000

for Admission of Drug Criminals; Other

Criminals; Alcohol Abusers.....................

5.902(c): Consent form from Family for Release 3,000 1 .15 450

of Criminal Records............................

5.902(d) and (f): PHA and Owner Request for 1,500 1 4 6,000

Criminal Conviction Records....................

5.902(f)(7): PHA Notification to Family and 1,500 1 1 1,500

Owner concerning Criminal Conviction Records...

5.903(d)(2): PHA request to State or local 300 1 2 600

agency for Sex Offender Information............

5.903(e)(6)(i): PHA Notification to Family and 300 1 1 300

Owner concerning Sex Offender Information......

960.204(c): PHA Requirement that Family provide 1,500 1 1 1,500

information whether any proposed household

member has ever been diagnosed or treated for

illegal drug use, abuse; sign consent form.....

960.204(d), (e)(i)(ii): PHA request for 500 1 1 500

Information from Drug Use Treatment Facility...

5.902(g), 5.903(f), 960.204(f): Establishment of 4,500 1 16 72,000

a Systems of Records Management and

Confidentiality................................

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

Total Reporting Burden...................... .............. .............. .............. 82,850

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

(c) In accordance with 5 CFR 1320.8(d)(1), the Department is

soliciting comments from members of the public and affected agencies

concerning the proposed collection of information to:

(1) Evaluate whether the proposed collection of information is

necessary for the proper performance of the functions of the agency,

including whether the information will have practical utility;

[[Page 40268]]

(2) Evaluate the accuracy of the agency's estimate of the burden of

the proposed collection of information;

(3) Enhance the quality, utility, and clarity of the information to

be collected; and

(4) Minimize the burden of the collection of information on those

who are to respond; including through the use of appropriate automated

collection techniques or other forms of information technology, e.g.,

permitting electronic submission of responses.

As described above, interested persons are invited to submit

comments regarding the information collection requirements in this

proposal. Under the provisions of 5 CFR part 1320, OMB is required to

make a decision concerning this collection of information between 30

and 60 days after today's publication date. Therefore, a comment on the

information collection requirements is best assured of having its full

effect if OMB receives the comment within 30 days of today's

publication. This time frame does not affect the deadline for comments

to the agency on the proposed rule, however. Comments must refer to the

rule by name and docket number (FR-4495-P-01) and must be sent to:

Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and

Budget, New Executive Office Building, Washington, DC 20503

and

Millie Hamman, Reports Management Officer, Office of Public and Indian

Housing, Department of Housing and Urban Development, Room 4238, 451

Seventh Street, SW, Washington, DC 20410

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. 4223). The Finding 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 proposed 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 proposed

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

determined that this proposed 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 proposed 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.

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 proposed 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 are as follows:

(1) A Substantial Number of Small Entities Will Not be Affected.

The proposed rule is exclusively concerned with public housing agencies

and with owners of federally assisted housing. Specifically, the

proposed rule will establish requirements governing applicant screening

and termination of assistance and occupancy based on criminal activity.

Under the definition of ``Small governmental jurisdiction'' in section

601(5) of the RFA, the provisions of the RFA are applicable only to

those few PHAs that are part of a political jurisdiction with a

population of under 50,000 persons. Owners or managers of assisted

housing would qualify as small entities only if they had less than $1.5

million in gross receipts annually. The number of entities potentially

affected by this rule is therefore not substantial.

(2) No Significant Economic Impact. The proposed rule will not

change the amount of funding available under the federally assisted

housing assistance programs. In the programs administered by the Office

of Housing, management agents perform the functions affected by the

rule for owners, including nonprofit owners. These agents are approved

because they provide management acceptable to HUD and are capable of

carrying out requirement management activities, including changes in

procedures. They receive fees based on the work they perform, and

guidelines provide for allowing fee increases for changed work

procedures. Accordingly, the economic impact of this rule will not be

significant, and it will not affect a substantial number of small

entities.

Notwithstanding HUD's determination that this rule will not have a

significant economic effect on a substantial number of small entities,

HUD specifically invites comments regarding any less burdensome

alternatives to this rule that will meet HUD's objectives as described

in this preamble.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official for HUD under

section 6(a) of Executive Order 12612, Federalism, has determined that

this rule will not have federalism implications concerning the division

of local, State, and Federal responsibilities. No programmatic or

policy change under this rule will affect the relationship between the

Federal government and State and local governments.

Catalog of Domestic Assistance Numbers

The Catalog of Domestic Assistance numbers for the programs

affected by this proposed 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.

[[Page 40269]]

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.

Accordingly, HUD proposes to amend 24 CFR parts 5, 200, 247, 880,

882, 884, 891, 960, 966 and 982, as follows:

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 following definitions, in

alphabetical order:

Sec. 5.100 Definitions.

* * * * *

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 (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-l); 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).

* * * * *

Public housing means housing assisted under the 1937 Act (42 U.S.C.

1437, et seq.), other than housing assisted under Section 8 (42 U.S.C.

1437f).

* * * * *

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, nontrivial 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--When a

Project Owner May Deny Admission or Terminate Tenancy for Criminal

Activity or Alcohol Abuse by Household Members

Sec.

5.851 Applicability to subsidized projects.

5.852 Terms.

5.853 Prohibiting admission of drug criminals.

5.854 Prohibiting admission of other criminals.

5.855 Prohibiting admission of alcohol abusers.

5.856 Evicting drug criminals.

5.857 Evicting other criminals.

5.858 Evidence of criminal activity.

5.859 Evicting alcohol abusers.

5.860 Drug use and alcohol abuse: owner discretion.

Subpart J--Access to Criminal Records and Information

Sec.

5.901 Definitions.

5.902 Availability of criminal records.

5.903 Sex offender information.

Subpart I--Preventing Crime in Federally Assisted Housing--When a

Project Owner May Deny Admission or Terminate Tenancy for Criminal

Activity or Alcohol Abuse by Household Members

Sec. 5.851 Applicability to subsidized projects.

(a) Except as provided in paragraph (b) or (c) of this section,

subpart I of this part is applicable to project-based assistance for

federally assisted housing.

(b) Subpart I of this part does not apply to public housing or

housing assisted with tenant-based assistance under Section 8. For

public housing, see part 960 (admission) and part 966 (termination of

tenancy) of this title. For Section 8 tenant-based assistance, see part

982 of this title.

(c) Subpart I of this part does not apply to housing assisted by

the Rural Development Administration under section 514 or section 515

of the Housing Act of 1949.

Sec. 5.852 Terms.

(a) Terms found elsewhere. The following terms are defined in

subpart A of this part: 1937 Act, drug, drug-related criminal activity,

federally assisted housing, HUD, public housing, public housing agency

(PHA), Section 8, violent criminal activity.

(b) Additional terms (for purposes of subpart I of this part).

Covered person. A resident, any member of the resident's household,

a guest or another person under the resident's control.

Household. The family and any live-in aide approved by the

responsible entity.

Owner. The owner of federally assisted housing.

Premises. The building or complex in which the assisted dwelling

unit is located, including common areas and grounds.

Responsible Entity. For the public housing program, and for the

Section 8 tenant-based assistance program (part 982 of this title), the

Section 8 project-based certificate or project-based

[[Page 40270]]

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 ACC with HUD. For all

other federally assisted housing, the responsible entity means the

owner of the housing.

Sec. 5.853 Prohibiting admission of drug criminals.

(a) The owner must establish standards that prohibit admission of a

household to federally assisted housing (subject to the provisions of

Sec. 5.860 of this subpart) if:

(1) The owner determines that any household member is currently

engaging in or has engaged in drug-related criminal activity; or

(2) The owner determines that it has reasonable cause to believe

that illegal use or a pattern of illegal use of a drug by a household

member may threaten the health or safety of, or the right to peaceful

enjoyment of the premises by, other residents).

(b) The owner may require the household to submit sufficient

evidence, as determined by the owner, that the members of the household

have not engaged in drug-related criminal activity during a reasonable

period, as determined by the owner, before admission to the federally

assisted housing.

(c) The owner standards must prohibit admission to the federally

assisted housing if any household member has been evicted from

federally assisted housing for drug-related criminal activity. This

prohibition applies during a reasonable period, as determined by the

owner, which is at least three years from the date of the judicial

determination authorizing the eviction. However, the owner may admit

the household if the owner determines:

(1) That the evicted household member who engaged in drug-related

criminal activity has successfully completed a supervised drug

rehabilitation program, or

(2) That the circumstances leading to the eviction no longer exist

(for example, the criminal household member has died or is imprisoned).

Sec. 5.854 Prohibiting admission of other criminals.

(a) The owner may prohibit admission of a household to federally

assisted housing under standards established by the owner if the owner

determines that any household member is currently engaging in or has

engaged in:

(1) Violent criminal activity,

(2) Other criminal activity which may threaten the health or safety

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

residents, or

(3) Other criminal activity which may threaten the health or safety

of the owner, property management staff, or persons performing a

contract administration function or responsibility on behalf of an

owner or PHA (including an employee, contractor, subcontractor or

agent).

(b) The owner may require the family to submit sufficient evidence,

as determined by the owner, that the members of the household have not

engaged in such criminal activity during a reasonable period, as

determined by the owner, before admission to the federally assisted

housing.

(c) The owner 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 screening of applicants, the owner must check

public documents or request the PHA to perform criminal history

background check necessary to determine whether any household member is

subject to a lifetime sex offender registration requirement. (See

Sec. 5.903.)

Sec. 5.855 Prohibiting admission of alcohol abusers.

The owner must establish standards that prohibit admission to

federally assisted housing if the owner determines it has reasonable

cause to believe that abuse or pattern of abuse of alcohol by a

household member may threaten the health or safety of, or the right to

peaceful enjoyment of the premises by, other residents.

Sec. 5.856 Evicting drug criminals.

The lease must provide that the owner may terminate the tenancy

during the term of the lease if any covered person is currently engaged

in or has engaged in any drug-related criminal activity on or near the

premises.

Sec. 5.857 Evicting other criminals.

(a) Threat to other residents. The lease must provide that any of

the following types of criminal activity by a covered person are

grounds for termination of tenancy during the term of the lease:

(1) Any criminal activity that threatens the health or safety of,

or the 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 or safety of,

or the 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

the owner may terminate the tenancy during the term of the lease if a

member of the household is:

(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. 5.858 Evidence of criminal activity.

The owner may deny admission or terminate tenancy for criminal

activity by a family member if the owner determines that the household

member has engaged in the criminal activity, regardless of whether the

household member has been arrested or convicted for such activity.

Sec. 5.859 Evicting alcohol abusers.

The lease must provide that the owner may terminate the tenancy if

the owner determines that a household member has engaged in abuse or

pattern of abuse of alcohol that threatens the health or safety of, or

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

Sec. 5.860 Drug use and alcohol abuse: owner discretion.

(a) Consideration of rehabilitation. In determining whether to deny

admission or terminate tenancy 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 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.

(b) Conditions for admission or continued assistance. (1) In

determining whether to deny admission or terminate tenancy for illegal

drug use by a household member, or for alcohol abuse by a household

member, the owner may impose, as a condition of admission to or

continued assistance in the program for other household members, a

requirement that any household member who engaged in or is culpable for

the drug use or alcohol abuse may not reside with the household or on

the premises.

(2) The owner may require a household member who has engaged in

[[Page 40271]]

the illegal use of a drug (as defined in Sec. 5.100 of this part), or

in alcohol abuse that threatened the health or safety of, or the right

to 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 a condition to

being allowed to reside with the household or on the premises.

Subpart J--Access to Criminal Records and Information

Sec. 5.901 Definitions.

(a) Terms found elsewhere. The following terms are defined in

subpart A of this part: 1937 Act, annual contributions contract (ACC),

drug, household, HUD, public housing, public housing agency (PHA),

Section 8.

(b) Additional terms (for purposes of subpart J of this part).

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 ACC with HUD. For all other Section 8 programs,

responsible entity means the Section 8 owner.

Sec. 5.902 Availability of criminal records.

(a) Purpose and applicability. (1) This section authorizes PHAs

that administer the Section 8 and public housing programs to obtain

criminal conviction records from a law enforcement agency. The criminal

conviction records are used to screen applicants for admission to these

programs and for lease enforcement or eviction. PHAs may not provide

these records concerning a household member receiving Section 8 tenant-

based assistance to owners.

(2) This section implements section 6(q) of the 1937 Act (42 U.S.C.

1437d(q)). The provisions of this section only apply to criminal

records obtained by a PHA from a law enforcement agency under this

section. The provisions of this section do not apply to criminal

records obtained by a PHA or others from law enforcement agencies other

than under this section, e.g., criminal records that are publicly

available or records offered by law enforcement agencies.

(b) Additional definitions (for purposes of this section).

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.

Law enforcement agency. The National Crime Information Center,

police departments and other law enforcement agencies that hold

criminal conviction records.

(c) Consent for release of criminal conviction records. (1) The

responsible entity may require the 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.

(d) PHA request for criminal conviction records. (1) A PHA that

administers a Section 8 or public housing program under an ACC with HUD

may request criminal conviction records from any law enforcement agency

concerning an adult member of a household:

(i) Applying for admission to a public housing program or to a

Section 8 tenant-based or project-based program.

(ii) Residing in public housing or receiving Section 8 project-

based assistance.

(2) The PHA request to the law enforcement agency must include a

copy of the consent form signed by the household member.

(3) When the law enforcement agency receives the PHA request

(including a copy of the signed consent form), the law enforcement

agency must promptly release to the PHA 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.

(4) The law enforcement agency may charge a reasonable fee for

releasing criminal conviction records to the PHA.

(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 Section 8

tenant-based assistance program (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 (f) 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. A PHA may only disclose the criminal

conviction records which it receives from a law enforcement agency as

follows:

(i) Criminal conviction records may be disclosed 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.

(ii) Criminal conviction records may be disclosed 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 used in

evidence. Upon disclosure as necessary in connection with judicial

eviction proceedings, such criminal conviction records may become

public information, and the PHA is not responsible for controlling

access to or knowledge of such records after such disclosure.

(f) Owner's request for criminal records. (1) An owner of a unit

with Section 8 project-based assistance that is located in a PHA's

jurisdiction may request that the PHA obtain criminal conviction

records of a household

[[Page 40272]]

member from a law enforcement agency. The PHA must review the records

on the owner's behalf in accordance with paragraph (f)(6) of this

section.

(2) The owner's request must include a copy of the consent form,

signed by the household member.

(3) The owner's request must also specify whether the owner is

requesting the PHA to obtain the criminal conviction records concerning

the household member for applicant screening, for lease enforcement, or

for eviction.

(4) The owner's request must also include the following information

concerning the criteria used by the owner in applicant screening, lease

enforcement or eviction:

(i) If the owner intends to use the PHA determination regarding any

such criminal conviction records for applicant screening, the owner's

request must include the owner standards for prohibiting admission of

drug criminals in accordance with Sec. 5.853, and for prohibiting

admission of other criminals in accordance with Sec. 5.854.

(ii) If the owner intends to use the PHA determination regarding

any such criminal conviction records for eviction, the owner's request

must include the owner standards for evicting drug criminals in

accordance with Sec. 5.856, and for evicting other criminals in

accordance with Sec. 5.857.

(iii) If the owner intends to use the PHA determination regarding

any such criminal conviction records for lease enforcement other than

eviction, the owner's request must include any owner standards for

lease enforcement because of criminal activity by members of a

household.

(5) If the owner submits a request for criminal conviction records

concerning an adult household member to the PHA, the PHA must request

the criminal conviction records from the appropriate law enforcement

agency or agencies as determined by the PHA.

(6) If the PHA receives criminal conviction records requested by a

Section 8 project 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.

The PHA determination must be based on the criteria used by the owner

as specified in the owner's request (see paragraph (f)(4) of this

section). For example, if the owner wants to know if the household

member has engaged in criminal activity that may be a basis for denying

admission, the PHA must determine whether criminal activity as shown by

any criminal conviction record received from a law enforcement agency

may be a basis for prohibiting admission in accordance with HUD

regulations and the owner criteria.

(7) The PHA must notify the family and the owner whether it 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 (f)(8) of this section, the

PHA must not disclose the household member's criminal conviction record

or the content of that record to the owner.

(8) The PHA may only disclose criminal conviction records to the

owner for use in connection with judicial eviction proceedings by the

owner. The PHA may only release the records:

(i) If the owner has requested the criminal conviction records

concerning a household member for use in connection with eviction; and

(ii) 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

(iii) If the owner provides the PHA a written certification that

the owner must use the criminal conviction records only to the extent

necessary in connection with judicial eviction proceeding in which the

owner seeks to evict the Section 8 tenant based on criminal activity by

the household member as shown in the criminal conviction records.

(9) 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.

(g) Records management. 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 for which the record was requested

has been accomplished.

Sec. 5.903 Sex offender information.

(a) Purpose. The purpose of this section is to prevent admission of

dangerous sex offenders to federally assisted housing. For this

purpose, PHAs are authorized to obtain sex offender registration

information from State and local agencies.

(b) Applicability. The provisions of this section apply to criminal

history background checks by a PHA of State sex offender registration

information in accordance with 42 U.S.C. 13663. The provisions of this

section do not apply to sex offender information obtained by a PHA or

others from law enforcement agencies other than under this section,

such as publicly available information listing persons subject to a

lifetime registration requirement under a State sex offender

registration program.

(c) Terms found elsewhere. The following terms are defined in

subpart A of this part: federally assisted housing, household, HUD,

public housing, public housing agency (PHA), owner, Section 8.

(d) How PHA obtains sex offender registration information. (1) A

PHA that administers a Section 8 or public housing program under an ACC

with HUD must carry out criminal history 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.

(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.

(e) Owner's request for sex offender registration information.

(1) 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 ACC 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) The owner's request must specify whether the owner is asking

the PHA to obtain the sex offender registration information concerning

the household member for applicant screening, for lease enforcement, or

for eviction.

(3) The owner's request must also include the following information

concerning the criteria used by the

[[Page 40273]]

owner in applicant screening, lease enforcement or eviction:

(i) If the owner intends to use the PHA determination regarding any

such sex offender registration information for applicant screening, the

owner's request must include the owner standards in accordance with

Sec. 5.854(c) for prohibiting admission of persons subject to a

lifetime sex offender registration requirement.

(ii) If the owner intends to use the PHA determination regarding

any such sex offender registration information for eviction, the

owner's request must include the owner standards for evicting persons

subject to a lifetime registration requirement in accordance with

Sec. 5.857.

(iii) If the owner intends to use the PHA determination regarding

any such sex offender registration information for lease enforcement

other than eviction, the owner's request must include any owner

standards for lease enforcement because of criminal activity by members

of a household.

(4) If an owner submits a request for sex offender registration

information from the PHA, the PHA must obtain such information in

accordance with paragraph (d) of this section.

(5) If the PHA obtains sex offender registration information from a

State or local agency upon request from an owner, the PHA must

determine whether such information may be a basis for applicant

screening, lease enforcement or eviction. The PHA determination must be

based on the criteria used by the owner as specified in the owner's

request.

(6)(i) The PHA must notify the family and 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.

(ii) The PHA must not disclose to the owner any sex offender

registration information obtained by the PHA under this section.

However, the restriction on PHA disclosure of sex offender registration

information does not apply to information that is public information,

or is obtained by a PHA other than under this section (for example,

information posted on a State sex offender registration website).

(7) 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.

(f) 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.

(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.

(g) Opportunity to dispute. If a PHA obtains sex offender

registration information from a State or local agency under paragraph

(d) of this section showing that a household member is subject to a

lifetime sex offender registration requirement, the PHA must provide

the family 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).

5. Add a new Sec. 200.37 under the heading ``Miscellaneous Cross

Cutting Regulations'' to read as follows:

Sec. 200.37 Preventing crime in federally assisted housing.

Programs administered under section 236 and under sections

221(d)(3) and 221(d)(5) of the National Housing Act are subject to the

requirements of part 5, subparts I and J, of this title.

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.

* * * * *

Subsized 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 or alcohol abuse by a covered person in

accordance with part 5, subparts I and J, of this title.

* * * * *

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.

Sec. 880.607 [Amended]

10. In Sec. 880.607, revise paragraph (b)(1)(iii) to read as

follows:

* * * * *

(b) * * *

(1) * * *

(iii) Criminal activity or alcohol abuse by a covered person in

accordance with part 5, subparts I and J, of this title.

* * * * *

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 by adding

definitions of the following additional terms, in alphabetical order:

Sec. 882.102 Definitions.

* * * * *

Covered person. A resident, any member of the resident's household,

a guest or another person under the resident's control.

* * * * *

[[Page 40274]]

Household. The family and any PHA-approved live-in aide.

Sec. 882.514 [Amended]

13. In Sec. 882.514, remove paragraph (a)(2) and redesignate

paragraph (a)(3) as paragraph (a)(2).

14. In part 882, add a new Sec. 882.518 to read as follows:

Sec. 882.518 When a PHA may deny admission or terminate assistance for

criminals and alcohol abusers.

(a) Requirement to deny admission. (1) Prohibiting admission of

drug criminals. (i) The PHA must establish standards that prohibit

admission of a household to the Section 8 moderate rehabilitation

program if the PHA determines that any household member is currently

engaging in or has engaged in drug-related criminal activity or the PHA

determines that it has reasonable cause to believe that illegal use or

a pattern of illegal use of a drug, as defined in Sec. 5.100 of this

part, by a household member may threaten the health or safety of, or

the right to peaceful enjoyment of the premises by, other residents).

(ii) The PHA may require the household to submit sufficient

evidence, as determined by the PHA, that the members of the household

have not engaged in drug-related criminal activity during a reasonable

period, as determined by the PHA, before admission to the program.

(iii) The PHA standards must prohibit admission to the program if

any household member has been evicted from federally assisted housing

for drug-related criminal activity. This prohibition applies during a

reasonable period, as determined by the PHA, which is at least three

years from the date of the judicial determination authorizing the

eviction. 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).

(iv) 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.

(2) Prohibiting admission of other criminals. (i) The PHA may

prohibit admission of a household to the program under standards

established by the PHA if the PHA determines that any household member

is currently engaged in or has engaged in:

(A) Violent criminal activity,

(B) Other criminal activity which may threaten the health or safety

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

residents,

(C) Other criminal activity which may threaten the health or safety

of the owner, property management staff, or persons performing a

contract administration function or responsibility on behalf of the PHA

(including a PHA employee or a PHA contractor, subcontractor or agent).

(ii) The PHA may require the household to submit sufficient

evidence, as determined by the PHA, that the members of the household

have not engaged in such criminal activity during a reasonable period,

as determined by the PHA, before admission to the program.

(iii) 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 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.

(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 abuse or

pattern of abuse of alcohol by a household member may adversely affect

the health or safety of, or the 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 any household member has engaged in drug-related

criminal activity.

(ii) Methamphetamine conviction--termination of assistance. 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 has engaged in

violent criminal activity.

(ii) Fugitive felon or parole violator. 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. The PHA may deny admission or

terminate assistance for criminal activity by a household member, as

authorized in this section, if the PHA determines that the household

member has engaged in the criminal activity, regardless of whether the

household member has been arrested or convicted for such activity.

(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 has engaged in abuse or

pattern of abuse of alcohol that threatens the health or safety of, or

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

(5) Drug use or alcohol use: PHA discretion. (i) Consideration of

rehabilitation. In determining whether to deny admission or terminate

assistance for illegal drug use by a household member who is no longer

engaging in such use, or for alcohol abuse by a household member who is

no longer engaging in such abuse, the PHA may consider whether the

household member is participating in or has successfully completed a

supervised drug or alcohol rehabilitation program, or has otherwise

been rehabilitated successfully.

(ii) Conditions for admission or continued assistance. (A) In

determining whether to deny admission or terminate assistance for

illegal use of a drug (as defined in Sec. 5.100 of this title) by a

household member, or for alcohol abuse by a household member, the PHA

may impose, as a condition of admission to, or continued assistance in

the program for other family members, a requirement that the family

member who engaged in or is culpable for such use or abuse may not

reside with the household or on the premises.

(B) The PHA may require a household member who has engaged in the

illegal

[[Page 40275]]

use of a drug (as defined in Sec. 5.100 of this title), or in alcohol

abuse that threatened the health or safety of, or the right to 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 a condition of continued

assistance.

PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW

CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING

PROJECTS

15. The authority citation for part 884 continues to read as

follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-

13619.

16. In Sec. 884.216, revise paragraph (b) to read as follows:

Sec. 884.216 Termination of tenancy.

* * * * *

(b) Termination of tenancy for criminal activity or alcohol abuse

by a covered person is subject to part 5, subpart G of this title.

* * * * *

PART 891--SUPPORTIVE HOUSING FOR THE ELDERLY AND PERSONS WITH

DISABILITIES

17. 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.

18. 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).

19. 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.

20. 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).

PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING

21. The authority citation for part 960 continues to read as

follows:

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

22. In part 960, add a new subpart A to read as follows:

Subpart A--Applicability and Definitions

Sec.

960.1 Applicability.

960.2 Definitions.

Subpart A--Applicability and Definitions

Sec. 960.1 Applicability.

This part is applicable to public housing.

Sec. 960.2 Definitions.

(a) Terms found elsewhere. The following terms are defined in part

5, subpart A of this title: 1937 Act, drug, drug-related criminal

activity, federally assisted housing, HUD, public housing, public

housing agency (PHA), Section 8, violent criminal activity.

(b) Additional terms (for purposes of this part).

Covered person. A resident, any member of the resident's household,

a guest or another person under the resident's control.

Household. The family and any PHA-approved live-in aide.

Premises. The building or complex in which the public housing

dwelling unit is located, including common areas and grounds.

23. In subpart B of part 960, remove Sec. 960.202, redesignate

Sec. 960.204 as Sec. 960.202, and add new Secs. 960.203 and 960.204 to

read as follows:

Sec. 960.203 When a PHA may deny admission for criminal activity or

drug abuse by household members.

(a) Prohibiting admission of drug criminals. (1) 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 or has engaged in drug-related criminal activity; or

(ii) The PHA determines that it has reasonable cause to believe

that illegal drug use or a pattern of illegal drug use by a household

member may adversely affect the health or safety of, or the right to

peaceful enjoyment of the premises by, other residents.

(2) The PHA may require the household to submit sufficient

evidence, as determined by the PHA, that the members of the household

have not engaged in drug-related criminal activity during a reasonable

period, as determined by the PHA, before admission to the PHA's public

housing program.

(3) The PHA standards must prohibit admission to the PHA's public

housing program if any household member has been evicted from federally

assisted housing for drug-related criminal activity. This prohibition

applies during a reasonable period, as determined by the PHA, which is

at least three years from the date of the judicial determination

authorizing the eviction. However, the PHA may admit the household if

the PHA determines:

(i) 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

(ii) That the circumstances leading to the eviction no longer exist

(for example, the criminal household member has died or is imprisoned).

(4) 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.

(b) Prohibiting admission of other criminals. (1) The PHA may

prohibit admission of a household to the PHA's public housing program,

under standards established by the PHA, if the PHA determines that any

household member is currently engaging in or has engaged in:

(i) Violent criminal activity; or

(ii) Other criminal activity which may threaten the health or

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

residents; or

(iii) Other criminal activity which may threaten the health or

safety of PHA management staff, or persons performing management

functions on behalf of the PHA (including a PHA employee or a PHA

contractor, subcontractor or agent).

(2) The PHA may require the family to submit sufficient evidence,

as determined by the PHA, that the

[[Page 40276]]

members of the household have not engaged in such criminal activity

during a reasonable period, as determined by the PHA, before admission

to the PHA's public housing program.

(3) 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 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.

(c) Prohibiting admission of alcohol abusers. 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 abuse or pattern of abuse of alcohol by a household member may

threaten the health or safety of, or right to peaceful enjoyment of the

premises by, other public housing residents.

(d) Evidence of criminal activity. The PHA may deny admission for

criminal activity by a household member as authorized in this section

if the PHA determines that the household member has engaged in the

criminal activity, regardless of whether the household member has been

arrested or convicted for such activity.

(e) Criminal records. Before a PHA denies admission to the PHA's

public housing program on the basis of a criminal record, the PHA must

provide the household with a copy of the criminal record and an

opportunity to dispute the accuracy and relevance of that record.

(f) Drug use and alcohol abuse: PHA discretion. (1) Consideration

of rehabilitation. In determining whether to deny admission to the

PHA's public housing program 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 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.

(2) Conditions for admission. In determining whether to deny

admission to the PHA's public housing program for illegal drug use by a

household member, or for alcohol abuse by a household member, the PHA

may impose, as a condition of admission to, and continued assistance

in, the PHA's public housing program for other family members, a

requirement that the household member who engaged in or is culpable for

the drug use or alcohol abuse may not reside in the unit.

(3) Submission of evidence. The PHA may require a household member

who has engaged in the illegal use of a drug (as defined in Sec. 5.100

of this title), or in alcohol abuse that affected the health or safety

of, or the right to 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 a condition to being allowed to reside in the unit.

Sec. 960.204 Drug use by applicants: obtaining information from drug

treatment facility.

(a) Purpose. This section implements section 6(u) of the 1937 Act

(42 U.S.C. 1437d(u)) on requesting and obtaining information from drug

abuse treatment facilities concerning applicants. The provisions of

this section do not apply to information requested or obtained from

drug abuse treatment facilities other than under section 6(u).

(b) Additional definitions (for purposes of this section).

(1) Currently engaging in illegal drug use. Illegal drug use

occurred recently enough to justify a reasonable belief that continuing

illegal drug use by a household member is a real and ongoing problem.

(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 the family to submit for any household member who is at least

18 years of age, and for each family head or spouse regardless of age a

consent form signed by such household member that:

(i) Requests any drug abuse treatment facility to inform the PHA

whether the drug abuse treatment facility has reasonable cause to

believe that the household member is currently engaging in illegal drug

use;

(ii) Authorizes the PHA to receive such information from the drug

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.

(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) Subject to section 543 of the Public Health Service Act (42

U.S.C. 290dd-2), the drug abuse treatment facility is required to

provide the information requested by the PHA in accordance with

paragraph (d)(1) of this section.

(4) 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).

(5) 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.

(6) A drug abuse treatment facility may charge the PHA a reasonable

fee for information provided under this section.

(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:

(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)(3) 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

[[Page 40277]]

criminal activity that may be a basis for denial of admission under

Sec. 960.203; 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.

(2) The policy adopted by the PHA must be included in the PHA

administrative plan and the PHA plan.

(f) Records management and confidentiality. (1) 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:

(i) Is maintained confidentially in accordance with section 543 of

the Public Health Service Act (12 U.S.C. 290dd-2);

(ii) Is not misused or improperly disseminated; and

(iii) Is destroyed, as applicable:

(A) Not later than 5 business days after the PHA admits the person

as a household member under the PHA's public housing program; or

(B) 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.

PART 966--PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE

23a. Revise the heading for part 966 to read as set forth above.

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

follows:

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

25. 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.

26. Add a new Sec. 966.2 to read as follows:

Sec. 966.2 Definitions.

(a) Terms found elsewhere. The following terms are defined in part

5, subpart A of this title: 1937 Act, drug, drug-related criminal

activity, HUD, public housing, public housing agency, Section 8,

violent criminal activity.

(b) Additional terms (for purposes of this part).

Covered person. A resident, any member of the resident's household,

a guest or another person under the resident's control.

Federally assisted housing means housing assisted under any of the

following programs:

(1) Public housing;

(2) Housing receiving project-based or tenant-based assistance

under Section 8 (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 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

State 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).

Household. The family and any PHA-approved live-in aide.

Premises. The building or complex in which the public housing

dwelling unit is located, including common areas and grounds.

27. In Sec. 966.4, redesignate paragraph (l)(5) as paragraph

(l)(6), revise paragraphs (f)(12), (l)(2) and (l)(3)(i), and add new

paragraph (l)(5) to read as follows:

Sec. 966.4 Lease requirements.

* * * * *

(f) * * *

(12)(i) To assure that no covered person 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 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.

* * * * *

(l) * * *

(2) Grounds for termination of tenancy. The PHA may terminate the

tenancy for any of the following grounds:

(i) Serious or repeated violation of the lease. Serious violation

includes, but is not limited to:

(A) Failure to pay rent or other payments due under the lease; or

(B) Violation of household obligations as described in paragraph

(f) of this section;

(ii) Criminal activity or alcohol abuse as provided in paragraph

(l)(5) of this section; or

(iii) Other good cause. Other good cause includes, but is not

limited to:

(A) Criminal or other activity by a member of the household that

threatens the health or safety of other public housing residents or of

persons residing in the immediate vicinity of the premises; or

(B) Criminal or other activity by a member of the household that

threatens the health or safety of PHA management staff.

(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) When the PHA may terminate tenancy for criminal activity or

alcohol abuse by household members.--(i) Evicting drug criminals. (A)

Drug crime on or off the premises. The lease must provide that the PHA

may terminate the tenancy if any covered person has engaged in any

drug-related criminal activity on or off the premises, including cases

where:

[[Page 40278]]

(1) A covered person has engaged in drug-trafficking; or

(2) A covered person has engaged in illegal drug use (including

cases where the PHA determines that illegal drug use or a pattern of

illegal drug use by a household member may threaten the health or

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

residents).

(B) 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.

(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 or safety of, or the right to peaceful enjoyment

of the premises by, other residents (including PHA management staff

residing on the premises) is grounds for termination of tenancy.

(B) Fugitive felon or parole violator. The PHA may terminate the

tenancy if a member of the household is:

(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.

(iii) Evidence of criminal activity. The PHA may terminate tenancy

for criminal activity by a household member if the PHA determines that

the household member has engaged in the criminal activity, regardless

of whether the household member has been arrested or convicted for such

activity.

(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 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.

(v) Evicting alcohol abusers. The PHA must establish standards that

allow termination of tenancy if the PHA determines that a household

member has engaged in abuse or pattern of abuse of alcohol that

threatens the health or safety of, or the right to peaceful enjoyment

of the premises by, other residents.

(vi) Drug use and alcohol abuse: PHA discretion. (A) 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 such use, or for abuse or 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.

(B) Conditions for continued assistance. (1) In determining whether

to terminate tenancy for illegal drug use by a household member, or for

alcohol abuse by a household member, the PHA may impose, as a condition

of continued assistance for other household members, a requirement that

any household member who engaged in or is culpable for the drug use or

alcohol abuse may not reside in the unit.

(2) The PHA may require a household member who has engaged in the

illegal use of a drug (as defined in Sec. 5.100 of this title), or in

alcohol abuse that threatened the health or safety of, or the right to

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 a condition to

being allowed to reside in the unit.

* * * * *

28. 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 near 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

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

follows:

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

30. 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. Add definitions of ``covered person'' and ``household'' to

paragraph (b), in alphabetical order; and

c. 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, drug, drug-related criminal

activity, federally assisted housing, MSA, HUD, public housing, Section

8, and violent criminal activity.

* * * * *

(b) * * *

Covered person. A resident, any member of the resident's household,

a guest or another person under the resident's control.

* * * * *

Household. The family and any PHA-approved live-in aide.

* * * * *

31. 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;

* * * * *

32. In Sec. 982.310, revise paragraph (c) to read as follows:

Sec. 982.310 Owner termination of tenancy.

* * * * *

(c) Criminal activity.--(1) Evicting drug criminals.--(i) Drug

crime on or near the premises. During the term of the lease, the owner

may terminate tenancy if any covered person has engaged in any drug-

related criminal activity on or near the premises, including cases

where:

(A) A covered person has engaged in drug-trafficking; or

(B) A covered person has engaged in illegal use of a drug, as

defined in Sec. 5.100 of this title, (including cases where the owner

determines that illegal use or pattern of illegal use of a drug by a

household member may threaten the health or safety of, or the right to

peaceful enjoyment of the premises by, other residents).

(2) Evicting other criminals.--(i) Threat to other residents.

During the term of the lease, the owner may terminate tenancy for any

of the following types of criminal activity by a covered person:

[[Page 40279]]

(A) Any criminal activity that threatens the health or safety of,

or the 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 of, or

the 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.

(ii) Fugitive felon or parole violator. During the term of the

lease, the owner may terminate the tenancy if 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. The owner may terminate tenancy

for criminal activity by a family member if the owner determines that

the household member has engaged in the criminal activity, regardless

of whether the household member has been arrested or convicted for such

activity.

* * * * *

33. 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.

* * * * *

34. Amend Sec. 982.552 as amended at 64 FR 26650 effective August

12, 1999, by revising paragraphs (b)(1), (b)(2), and (c)(3), and by

adding 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) The

PHA may deny admission to the program for a reasonable time period

determined by the PHA if any household member has been evicted from

federally assisted housing for serious violation of the lease (other

than eviction for drug-related criminal activity. For provisions on

eviction for drug-related criminal activity, see Sec. 982.553).

(2) The PHA may terminate program assistance for a household

evicted from housing assisted under the program for serious violation

of the lease (other than an eviction for drug-related criminal

activity).

* * * * *

(c) Authority to deny admission or terminate assistance.

(1) * * *

(xi) For denial or termination of assistance for crime or alcohol

abuse by household members, see Sec. 982.553.

* * * * *

(3) Exclusion of family members. In determining whether to deny

admission or terminate assistance in accordance with paragraphs (c)(1)

or (c)(2) of this section, the PHA may impose, as a condition of

continued assistance for other family members, a requirement that

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.

* * * * *

35. Revise Sec. 982.553 to read as follows:

Sec. 982.553 Denial of admission or termination of assistance for

criminals and alcohol abusers.

(a) Requirement to deny admission.--(1) Prohibiting admission of

drug criminals. (i) The PHA must establish standards that prohibit

admission of a household to the program if:

(A) the PHA determines that any household member is currently

engaging in or has engaged in drug-related criminal activity; or

(B) the PHA determines that it has reasonable cause to believe that

illegal drug use or a pattern of illegal drug use by a household member

may adversely affect the health, safety, or right to peaceful enjoyment

of the premises by other residents.

(ii) The PHA may require the household to submit sufficient

evidence, as determined by the PHA, that the members of the household

have not engaged in drug-related criminal activity during a reasonable

period, as determined by the PHA, before admission to the program.

(iii) The PHA must prohibit admission to the program if any

household member has been evicted from federally assisted housing for

drug-related criminal activity. This prohibition applies during a

reasonable period, as determined by the PHA, which is at least three

years from the date of the judicial determination authorizing the

eviction. The PHA may admit a 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).

(iv) 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.

(2) Prohibiting admission of other criminals. (i) 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:

(A) Violent criminal activity;

(B) Other criminal activity which may threaten the health or safety

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

residents;

(C) Other criminal activity which may threaten the health or safety

of the owner, property management staff, or persons performing a

contract administration function or responsibility on behalf of the PHA

(including a PHA employee or a PHA contractor, subcontractor or agent).

(ii) The PHA may require the household to submit sufficient

evidence, as determined by the PHA, that the members of the household

have not engaged in such criminal activity during a reasonable period,

as determined by the PHA, before admission to the program.

(iii) 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 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.

[[Page 40280]]

(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 abuse or

pattern of abuse of alcohol by a household member may adversely affect

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

premises by, other residents.

(b) Terminating assistance.--(1) Terminating assistance for drug

criminals.--(i) Standards. The PHA must establish standards that allow

the PHA to terminate assistance for a family under the program if the

PHA determines that any household member has engaged in drug-related

criminal activity.

(ii) Methamphetamine conviction--termination of assistance. 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) Standards. The

PHA must establish standards that allow the PHA to terminate assistance

for a family if the PHA determines that any household member has

engaged in violent criminal activity.

(ii) Fugitive felon or parole violator. The lease must provide that

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) Terminating assistance for alcohol abusers. The PHA must

establish standards that allow termination of assistance for a family

if the PHA determines that household member has engaged in abuse or

pattern of abuse of alcohol that threatens the health or safety of, or

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

(c) Evidence of criminal activity. The PHA may deny admission or

terminate assistance for criminal activity by a household member as

authorized in this section if the PHA determines that the household

member has engaged in the criminal activity, regardless of whether the

household member has been arrested or convicted for such activity.

(d) Use of criminal record. If a PHA proposes to deny admission for

criminal activity as shown by a criminal record, the PHA must provide

the family with a copy of the criminal record before a PHA informal

review of such decision in accordance with Sec. 982.554. If a PHA

proposes to terminate assistance for criminal activity as shown by a

criminal record, the PHA must provide the family with a copy of the

criminal record before a PHA hearing in accordance with Sec. 982.554.

The family must be given an opportunity to dispute the accuracy and

relevance of that record. For denial of admission, the PHA must provide

such opportunity in the informal review process in accordance with

Sec. 982.554. For termination of assistance, the PHA must provide such

opportunity in accordance with Sec. 982.555.

(e) Drug use or alcohol use: PHA discretion. (1) Consideration of

rehabilitation. In determining whether to deny admission or terminate

assistance for illegal drug use by a household member who is no longer

engaging in such use, or for alcohol abuse by a household member who is

no longer engaging in such abuse, the PHA may consider whether the

household member is participating in or has successfully completed a

supervised drug or alcohol rehabilitation program, or has otherwise

been rehabilitated successfully.

(2) Conditions for admission or continued assistance. (i) In

determining whether to deny admission or terminate assistance for

illegal use of a drug by a household member, or for alcohol abuse by a

household member, the PHA may impose, as a condition of admission to,

or continued assistance in the program for other family members, a

requirement that the family member who engaged in or is culpable for

such use or abuse may not reside in the unit.

(ii) The PHA may require a household member who has engaged in the

illegal use of a drug (as defined in Sec. 5.100 of this title), or in

alcohol abuse that threatened the health or safety of, or the right to

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 a condition of

continued assistance.

Dated: July 16, 1999.

Andrew Cuomo,

Secretary.

[FR Doc. 99-18801 Filed 7-22-99; 8:45 am]

BILLING CODE 4210-32-P