[Federal Register Volume 64, Number 91 (Wednesday, May 12, 1999)]
[Rules and Regulations]
[Pages 25726-25733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11917]
[[Page 25725]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 5
Revised Restrictions on Assistance to Noncitizens; Final Rule
Federal Register / Vol. 64, No. 91 / Wednesday, May 12, 1999 / Rules
and Regulations
[[Page 25726]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 5
[Docket No. FR-4154-F-03]
RIN 2501-AC36
Revised Restrictions on Assistance to Noncitizens
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule updates HUD's noncitizens regulations to
incorporate the amendments made to section 214 of the Housing and
Community Development Act of 1980 by section 592 of the Quality Housing
and Work Responsibility Act of 1998 (the ``1998 Act''). Specifically,
section 592 of the 1998 Act provides that PHAs, notwithstanding the
requirements of Section 214, may elect not to affirmatively establish
and verify eligibility before providing financial assistance to an
individual or family. Before this amendment, statutory authority
allowed PHAs to opt-out of compliance with the Section 214 immigration
verification requirements in their entirety. This final rule also makes
final a November 29, 1996 interim rule and takes into consideration the
public comments submitted on the interim rule.
EFFECTIVE DATE: June 11, 1999.
FOR FURTHER INFORMATION CONTACT: For the covered programs, the
following persons should be contacted:
1. For the Public Housing, Section 8 Rental Certificate, Rental
Voucher and Moderate Rehabilitation (except Single Room Occupancy-
``SRO'') programs: Patricia Arnaudo, Office of Public and Indian
Housing, Room 4222, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410, telephone (202) 619-8201;
2. For the Section 8 Moderate Rehabilitation SRO program: John
Garrity, Office of Community Planning and Development, Room 7262,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC 20410, telephone (202) 708-4300;
3. For the other Section 8 programs, the Section 236 programs, and
Housing Development Grants and Rent Supplement: Helene DeVous, Office
of Housing, Room 6146, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410, telephone (202) 708-2866.
4. For the Section 235 homeownership program: Phillip Murray,
Office of Lender Activities and Program Compliance, Office of Housing,
Room B133, Department of Housing and Urban Development, 451 Seventh
Street, SW, Washington, DC, 20410, telephone (202) 708-1515.
Persons with hearing or speech impairments may access the above
telephone numbers via TTY by calling the Federal Information Relay
Service at 1-800-877-8339. With the exception of the ``800'' number,
none of the foregoing telephone numbers are toll-free.
SUPPLEMENTARY INFORMATION:
I. HUD's Implementation of Section 214 of the Housing and Community
Development Act of 1980
On March 20, 1995 (60 FR 14816), HUD issued its final rule
implementing Section 214 of the Housing and Community Development Act
of 1980 (42 U.S.C. 1436a) (``Section 214'') and that rule became
effective on June 19, 1995. Section 214 prohibits HUD from making
certain financial assistance available to persons other than United
States citizens, nationals, or specified categories of eligible
noncitizens.
HUD's March 20, 1995 final rule promulgated virtually identical
``noncitizens'' regulations for the various HUD programs covered by
Section 214. On March 27, 1996 (61 FR 13614), HUD published a final
rule eliminating the repetitiveness of these duplicative regulations by
consolidating the noncitizens requirements in a new subpart E to 24 CFR
part 5. HUD established part 5 (entitled ``General HUD Program
Requirements; Waivers'') to describe those requirements which are
applicable to one or more program regulations.
II. The November 29, 1996 Interim Rule
On November 29, 1996 (61 FR 60535), HUD published an interim rule
amending its noncitizens regulations to incorporate the amendments made
to Section 214 by the Use of Assisted Housing by Aliens Act of 1996
(title V, Subtitle E of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, approved September 30,
1996; 110 Stat. 3009-546) (the ``1996 Immigration Act''). Section 577
of the 1996 Immigration Act directed that HUD's implementing
regulations ``be issued in the form of an interim final rule, which
shall take effect upon issuance.'' Accordingly, the amendments made by
the November 29, 1996 interim rule were effective upon publication, but
also provided members of the public with a 60-day period to submit
their comments on the interim rule.
The most significant changes made to Section 214 by the 1996
Immigration Act, and consequently to HUD's Section 214 regulations by
the November 29, 1996 interim rule, are as follows:
1. HUD's interim noncitizens regulations provide that responsible
entities may not make assistance available to a family applying for
assistance until at least the eligibility of one family member has been
established, and assistance must be prorated based on the number of
individuals in the family for whom eligibility has been affirmatively
established.
2. The interim regulations require that continued financial
assistance be provided to an eligible mixed family after November 29,
1996 (the effective date of the interim rule) be prorated based on the
percentage of family members that are eligible for assistance. An
eligible mixed family is a family containing members with eligible
immigration status, as well as members without such status, and that
meets the criteria for eligibility for continued assistance as
described in Section 214.
3. The interim regulations require that HUD suspend financial
assistance to a family upon determining that the family has knowingly
permitted an ineligible individual to reside on a permanent basis in
the family's unit. The suspension shall be for a period of at least 24
months. This provision does not apply if the ineligible individual has
already been considered in calculating any proration of assistance for
the family.
4. The interim regulations allow responsible entities administering
financial assistance under a Section 214 covered program to require
that individuals who declare themselves to be U.S. citizens verify the
declaration through appropriate documentation (e.g., United States
passport, resident alien card, registration card, social security card,
or other appropriate documentation). Before this amendment, only
individuals who were not U.S. citizens or nationals were required to
present documentation of their eligible immigration status.
5. The November 29, 1998 interim rule revised the maximum period
for deferral of termination of assistance provided after November 29,
1996 from an aggregate of 3 years to an aggregate of 18 months. The 18-
month maximum deferral period does not apply to refugees under section
207 of the Immigration and Nationality Act or to individuals seeking
asylum under section 208 of that Act. The maximum deferral period for
deferrals granted
[[Page 25727]]
prior to November 29, 1996 continues to be 3 years.
6. The interim regulations provide that an individual has a maximum
period of 30-days, starting from the date of receipt of the notice of
denial or termination of assistance, to request a fair hearing. HUD
believes that due process requires that assistance already being
provided to a tenant may not be delayed, denied, reduced or terminated
until completion of the fair hearing.
7. The interim regulations provide that a Public Housing Agency
(PHA) may elect not to comply with the requirements of 24 CFR part 5,
subpart E. This amendment was based on the language of subsection
214(h)(2), which was added by section 575 of the 1996 Immigration Act.
Subsection 214(h)(2) provided that ``[a] Public Housing Agency . . .
may elect not to comply with this section.'' The use of the word
``section'' (as opposed to ``subsection'') in this provision, in a
strict statutory construction, referred to Section 214 in its entirety.
III. Section 592 of the Quality Housing and Work Responsibility Act
of 1998
On October 21, 1998, President Clinton signed into law HUD's fiscal
year (FY) 1999 Appropriations Act, which includes the Quality Housing
and Work Responsibility Act of 1998 (title V of the FY 1999 HUD
Appropriations Act; Public Law 105-276; 112 Stat. 2461) (the ``1998
Act''). The 1998 Act constitutes a substantial overhaul of HUD's public
housing and Section 8 assistance programs. The 1998 Act enacts many of
the reforms originally proposed in Secretary Andrew Cuomo's HUD 2020
Management Reform Plan, HUD's public housing bill and Congressional
bills that are directed at revitalizing and improving HUD's public
housing and Section 8 tenant-based programs.
Section 592 of the 1998 Act (entitled ``Use of Assisted Housing by
Aliens'') removed the option of PHAs to elect not to comply with
Section 214. In its place, the 1998 Act provides that PHAs,
notwithstanding the requirements of Section 214, may elect not to
affirmatively establish and verify eligibility before providing
financial assistance to an individual or family (as discussed above,
Section 214, and HUD's noncitizens regulations, provide that no
individual or family applying for financial assistance may receive such
financial assistance prior to the affirmative establishment and
verification of eligibility of at least the individual or one family
member). Section 592 of the 1998 Act was effective upon enactment
(October 21, 1998).
On February 18, 1999 (64 FR 8192), HUD published a Notice of
Initial Guidance in the Federal Register. The notice advises the public
of those provisions of the 1998 Act that are effective immediately and
of action that may or should be taken immediately by affected public
and assisted housing providers. The February 18, 1999 notice advises
the public that section 592 of the 1998 Act removed the option of PHAs
to elect not to comply with Section 214. Further, the notice provides
that in the event a PHA elected to ``opt-out'' of compliance with
Section 214, the PHA may, but is not required to, immediately commence
verification of eligibility of families for whom eligibility status
under Section 214 has not yet been undertaken. A PHA must, however,
verify eligibility status in accordance with the requirements of
Section 214 and HUD's implementing regulations at 24 CFR part 5,
subpart E, no later than the date of the family's annual reexamination.
IV. This Final Rule
This rule makes final the amendments in the November 29, 1996
interim rule, and takes into consideration the public comments
submitted on the interim rule. After careful consideration of all the
comments received on the November 29, 1996 interim rule, HUD has made
one change as a result of public comment. Specifically, HUD has revised
the list of documentation that may constitute acceptable evidence of
U.S. citizenship or U.S. nationality (see discussion of public comment
captioned ``Rule Should Specify Acceptable Evidence of Citizenship'' in
section V.B of this preamble).
This final rule updates HUD's noncitizens regulations to
incorporate the amendments made by section 592 of the 1998 Act.
Specifically, the final rule removes Sec. 5.501 (which granted PHAs the
ability to opt-out of compliance with Section 214) and revises
Sec. 5.512 (entitled ``Verification of eligible immigration status'')
to state that PHAs may elect to provide financial assistance to an
individual or family before verifying the eligibility of the individual
or one family member.
This final rule also makes a correction to Sec. 5.508 of the
November 29, 1996 interim rule. The 1996 Immigration Act permits
responsible entities to verify the eligibility of individuals who
declare themselves to be U.S. citizens or nationals. Although the
preamble to the November 29, 1996 interim rule correctly referred to
both U.S. citizens and nationals, Sec. 5.508 of the interim rule, which
implemented this statutory provision, inadvertently failed to refer to
U.S. nationals. This final rule makes the necessary correction to
Sec. 5.508.
This final rule does not implement the provisions of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (Public
Law 104-193, approved August 22, 1996; 110 Stat. 2105) which concern
immigration. The changes required by that Act will be the subject of
future rulemaking.
Readers should note that the regulatory text of this final rule is
identical to that of the November 29, 1996 interim rule, with the
exception of the changes implementing section 592 of 1998 Act and the
changes to Sec. 5.508.
V. Discussion of Public Comments on the November 29, 1996 Interim
Rule
The public comment period on the November 29, 1996 interim rule
closed on January 28, 1997. HUD received twenty-two comments, including
comments from nonprofit organizations, PHAs, and PHA interest
organizations. This section of the preamble presents a summary of the
significant issues raised by the public commenters on the November 29,
1996 interim rule, and HUD's responses to these comments.
A. Comments on the Statutory PHA ``Opt Out'' Provision (Section 5.501)
Many of the comments received regarding the PHA ``opt-out''
provision were submitted before publication of the November 29, 1996
interim rule. The vast majority of these comments urged that HUD
interpret section 575 of the 1996 Immigration Act to permit PHAs to
opt-out of compliance with Section 214 in its entirety. As noted above,
the recommended interpretation of section 575 was in fact the position
adopted by HUD in the November 29, 1996 interim rule and this
interpretation was based on the statutory language itself.
Many of these commenters noted that in some cities, such as New
York City, most ineligible noncitizens are part of families that
include citizens, nationals, or other eligible persons, and are
``deeply woven into the fabric of everyday life.'' The commenters wrote
that it would be a great hardship to such families to penalize these
ineligible persons. Other commenters wrote that the recommended
interpretation of the opt-out provision would further HUD's policy of
``vest[ing] in local public housing agencies the maximum amount of
responsibility in the administration of their housing programs.''
HUD Response. As noted above, section 592 of the 1998 Act amended
the scope of the PHA opt-out provision.
[[Page 25728]]
This final rule updates 24 CFR part 5, subpart E to incorporate the
amendments made by section 592 of the 1998 Act. Specifically, the final
rule removes Sec. 5.501 (entitled ``PHA election whether to comply with
this subpart''), which allowed PHAs to opt-out of compliance with the
Section 214 requirements. The final rule also amends Sec. 5.512
(entitled ``Verification of eligible immigration status'') to state
that PHAs may elect to provide financial assistance to an individual or
family before verifying the eligibility of the individual or one family
member.
B. Comments on the Submission of Evidence of Eligible Status (Section
5.508)
Comment: Nondiscrimination Requirements Should be Codified. Two
commenters suggested that HUD amend the interim rule to explicitly
provide that an entity administering a program covered by Section 214
may not request verification of citizenship based on race, national
origin, or personal characteristics, such as accent, language spoken,
or familial association with a noncitizen.
HUD Response. As Sec. 5.524 makes clear, all regulatory procedures
in the implementation of Section 214 must be administered in accordance
with all applicable nondiscrimination and equal opportunity
requirements, including, but not limited to, title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-2000d-5) and the implementing
regulations in 24 CFR part 1, section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) and the implementing regulations in 24 CFR part 8,
the Fair Housing Act (42 U.S.C. 42 U.S.C. 3601-3619) and the
implementing regulations in 24 CFR part 100. Further, section VI of
this preamble reminds the public that the Section 214 prohibitions on
assistance to noncitizens must be implemented in the uniform manner
prescribed, without regard to race, national origin, or personal
characteristics (e.g., accent language spoken, or familial association
with a noncitizen). The individual regulations for the HUD programs
subject to Section 214 specify the fair housing and civil rights
requirements applicable to each program.
Comment: Senior Noncitizens Should be Subject to Stricter
Verification Procedures. Section 214 provides that certain senior
noncitizens (those 62 years of age or older) need only submit a signed
declaration of eligible immigration status and a proof of age document
for purposes of verifying their eligibility to receive assistance. All
other noncitizens, however, must submit their documentation of eligible
immigration status for verification by the Immigration and
Naturalization Service (INS). Before the amendments made by the 1996
Immigration Act, Section 214 limited this more lenient treatment to
senior noncitizens receiving assistance on June 19, 1995 (the effective
date of HUD's original March 20, 1995 noncitizens rule). The November
29, 1996 interim rule expanded the exemption to include senior
noncitizens receiving assistance on September 30, 1996 (the date of
enactment of the 1996 Immigration Act) or applying for assistance on or
after that date. Two commenters objected to this amendment, and wrote
that the higher standard of documentation should continue to be
required of senior noncitizens who apply after September 30, 1996.
HUD Response. This regulatory amendment merely tracks the revision
made to section 214(d)(4) by the 1996 Immigration Act. Accordingly, HUD
does not have the discretion to modify this provision in the manner
suggested by the commenters.
Comment: Rule Should Specify Acceptable Evidence of Citizenship or
Nationality. The 1996 Immigration Act allows responsible entities
administering financial assistance under a Section 214 covered program
to require that individuals who declare themselves to be U.S. citizens
or nationals to verify the declaration through appropriate
documentation. Before this amendment, only individuals who were not
U.S. citizens or nationals were required to present documentation of
their eligible immigration status.
Three commenters recommended that HUD provide greater specificity
regarding what documentation constitutes acceptable evidence of
citizenship and nationality. One of the commenters noted that two of
the documents listed as examples in Sec. 5.508 (a resident alien card
and a Social Security Card) do not constitute adequate evidence of
citizenship or nationality. The commenter wrote that several of the
other listed examples, such as a ``registration card'' or ``other
appropriate documentation,'' were too vague. One commenter suggested
that acceptable proof of citizenship should include a signed
declaration of citizenship accompanied by proof that a timely request
for supporting documentation has been made. According to the commenter,
this would ease the situation encountered by applicants who have
difficulty obtaining original birth certificates from distant
jurisdictions.
HUD Response. The commenters are correct that neither a resident
alien card nor a Social Security Card is evidence of U.S. citizenship
or U.S. nationality. Therefore, HUD has removed the references to these
documents, as well as the reference to a ``registration card'', from
Sec. 5.508(b)(1). If HUD determines that additional examples are
necessary, HUD will more appropriately provide them through notice,
handbook, or other non-regulatory guidance.
C. Comments on Verification of Eligible Status: Timing of Procedure and
Proration of Assistance (Section 5.512)
Comment: Verification of All Household Members Should be Required
Before Admission. HUD's noncitizens regulations provide that
responsible entities may not make assistance available to a family
applying for assistance until at least the eligibility of one family
member has been established, and assistance must be prorated based on
the number of individuals in the family for whom eligibility has been
affirmatively established.
Several commenters indicated that proration of rent for newly
admitted families due to an inability to complete the verification of
eligibility of all family members before admission is a problem, both
to the applicant and to the housing provider. They wrote that families
who have not yet moved in will choose not to pay a prorated rent. If
families are admitted with full subsidy after verification of
eligibility of only one family member, the family and housing provider
will both suffer losses if proration becomes required, since it is
unlikely that the family will be able to pay the higher rent and
eviction will follow.
Three commenters suggested that this perceived difficulty might be
resolved by requiring verification of all household members before
admission. The commenters wrote that this would not constitute an undue
delay in the provision of assistance. According to two of these
commenters, housing providers usually receive verification within one
to two weeks after submission of the appropriate documentation. The
commenters noted that the regulations grant individuals and families up
to 30 days to submit the required documentation--a longer time period
than what the commenters' experience indicates it takes to complete the
entire verification process.
HUD Response. Subsection 214(d)(4)(B)(ii), as amended by the 1996
Immigration Act, prohibits the delay, denial, reduction, or termination
of assistance to an applicant or tenant
[[Page 25729]]
pending the completion of the verification process. Assistance to newly
admitted families may not be prorated based on the inability of the
responsible entity to complete verification for all family members.
The commenters are correct in noting that assistance may need to be
prorated if the verification process determines that one or more family
members is not eligible. HUD acknowledges that families may be unable
to pay the higher rent resulting from proration. Nevertheless, the
requirement that assistance be prorated based on the number of
individuals in the family for whom eligibility has been affirmatively
established is statutorily mandated by the 1996 Immigration Act.
Comment: Rent Should be Retroactively Reduced Following
Verification of Status for All Family Members. Another commenter
suggested that, where assistance was initially prorated because the
status of all the family members had not been established, the rent
should be reduced retroactively to the date of admission following
verification of the eligible status of all the family members.
HUD Response. As noted in the response the preceding comment,
responsible entities may not prorate assistance to a family before the
completion of the verification process.
D. Comments on Delay, Denial, Reduction, or Termination of Assistance
(Section 5.514)
Comment: Verification Should be Completed Before Admission. One
commenter praised HUD's interpretation that assistance to a tenant not
be delayed, denied, reduced, or terminated until the completion of an
informal hearing when a timely request for such a hearing is made. This
contrasted with the opinion of another commenter, who stated that,
although it was the intent of the Congress to not delay assistance to
current program participants, no such authority exists regarding
applicants. Accordingly, this commenter wrote all aspects of
eligibility need to be verified before a family is admitted.
HUD Response. HUD's noncitizens regulations track the statutory
language of the 1996 Immigration Act. Specifically, subsection
214(d)(4)(B)(ii), as amended by the 1996 Immigration Act, prohibits the
delay, denial, reduction, or termination of assistance to an applicant
or tenant pending the completion of the verification process.
Comment: What Constitutes ``Knowingly'' Permitting an Ineligible
Person to Reside in an Assisted Housing Unit? Several commenters wrote
to express uncertainty regarding Sec. 5.514(c)(1)(iii), which provides
that assistance to an applicant shall be denied, and a tenant's
assistance shall be terminated, if--
(iii) The responsible entity determines that a family member has
knowingly permitted another individual who is not eligible for
assistance to reside (on a permanent basis) in the public or
assisted housing unit of the family member. Such termination shall
be for a period of not less than 24 months * * *
Several commenters asked for greater clarity regarding what
constitutes ``knowingly'' permitting an ineligible person to reside in
an assisted unit on a permanent basis. One of the commenters suggested
that a deliberate intention to deceive the housing provider (i.e.,
knowledge about the ineligible status and intentionally permitting
permanent residence in the unit), should be the basis for the
imposition of sanctions.
HUD Response. HUD believes that ``knowingly'' has the everyday
meaning normally associated with the term. Specifically, the word
``knowingly,'' as used in this provision of the 1996 Immigration Act,
means that a tenant possesses knowledge that an ineligible individual
is residing (on a permanent basis) in the unit.
Comment: What Constitutes ``Termination'' of Assistance Under
Section 5.514(c)(1)(iii)? As noted above, HUD's noncitizens regulations
at 24 CFR 5.514(c)(1)(iii) provide that, if a family member knowingly
permits an ineligible individual to reside in an assisted housing unit,
the family member's assistance must be ``terminated'' for a period of
not less than 24 months. Several commenters questioned whether the
effect of this termination is that the formerly assisted family is
required to reapply for assistance after the expiration of the
prescribed period (or immediately upon termination, with a required
wait of the prescribed period), or whether assistance is to be
automatically reinstated after the prescribed period.
HUD Response. Termination of assistance under Sec. 5.514(c)(1)(iii)
would be no different than termination of assistance for any other
reason under the individual program requirements for each of the HUD
programs covered by Section 214. For example, recipients of Section 8
tenant-based assistance who violate Sec. 5.514(c)(1)(iii) are subject
to the termination procedures described in 24 CFR part 982, subpart L
(``Family Obligations; Denial and Termination of Assistance'').
Comment: Maximum Period or Termination Should Exceed 24 Months. One
commenter wrote that HUD should establish conditions for imposing a
termination period longer than the statutory minimum 24 month sanction.
Subsection 214(d)(6), and HUD's implementing regulation at
Sec. 5.514(c)(1)(iii), provides that HUD shall terminate assistance for
a period of ``not less than 24 months.''
HUD Response. At this time, HUD is not amending 24 CFR part 5,
subpart E to incorporate the recommendations made by the commenter. The
establishment of regulatory criteria for the imposition of termination
periods greater than 24 months would constitute a substantive revision
of HUD's noncitizens regulations. Accordingly, HUD would implement such
changes only after providing the public with notice and the opportunity
to comment. HUD would not include the revisions suggested by the
commenter in a final rule issued for effect. Should HUD decide to
provide for termination periods of greater than 24 months, it will
issue a future rulemaking accompanied by a request for public comment.
Comment: Time Period for Requesting Hearing Should Conform to
Hearing Procedures Established by Responsible Entity. One commenter
recommended that the time period for requesting a hearing on a negative
determination be consistent with the amount of time established by the
responsible entity for all terminations of assistance (such as 10
days).
HUD Response. The regulatory language of Sec. 5.514 conforms to the
language of the 1996 Immigration Act, which provides that the Secretary
of HUD shall provide a ``reasonable period, not to exceed 30 days'' to
appeal an INS eligibility determination. At this time, HUD is not
revising its noncitizens regulations to permit the establishment of
less than a 30-day period for requesting an informal hearing. Such a
change would constitute a substantive revision to the November 29, 1996
interim rule, and could not be implemented through a rule issued for
effect. In the event HUD determines that responsible entities should be
provided with the flexibility to modify the 30-day period for
requesting a hearing, it will implement the change using notice and
comment rulemaking procedures.
E. Comments on Deferral of Termination of Assistance for Ineligible
Families (Section 5.518)
Comment: Requested Clarifications Regarding Eligibility and Timing
for Temporary Deferral of Termination of Assistance. One commenter
asked under what circumstances anyone would now receive a deferral of
termination of
[[Page 25730]]
assistance. According to the commenter, deferrals were only given to
those families living and receiving assistance in Section 214 covered
properties on or before June 19, 1995. Another question raised was
whether a family that chose proration of assistance before November 29,
1996 and that chooses deferral of termination after that date is
limited to a deferral of 18 months.
HUD Response. HUD believes that it would be the exceptional case in
which a family would be eligible for deferral of termination of
assistance in 1999. As the commenter notes the statute provides
deferral of termination of assistance for families living and receiving
assistance in Section 214 covered properties on or before June 19,
1995. It is conceivable that the verification process or appeals
process may have significantly delayed a final eligibility
determination such that a family receiving assistance on or before June
19, 1995 would now find themselves faced with termination of assistance
(due to lack of eligibility), and would therefore be eligible for
deferral of termination of assistance. Again, however, HUD believes
that this would be the exception.
With respect to a family that is eligible for deferral of
termination and chooses deferral of termination of assistance after
November 29, 1996, the period of deferral of termination is limited to
18 months.
F. Comments on Continued Full Assistance to Ineligible Family Members
(Section 5.518)
Comment: Rule Should be Clarified Regarding Continued Assistance
Provided Before November 29, 1996. One commenter wrote that it was not
completely clear that ``continued assistance,'' for purposes of
families receiving housing assistance before November 29, 1996, means
non-prorated assistance. The commenter requested that Sec. 5.518(a)(2)
be revised to clarify this provision of the 1996 Immigration Act. In
addition, this commenter wrote that the aggregate deferral period for a
tenant who was granted a temporary deferral before November 29, 1996,
is three years from the date the first deferral was granted.
HUD Response. Section 5.518(a)(2) provides, a family granted
continued assistance before November 29, 1996 is entitled to receive
non-prorated assistance. A family granted continued assistance after
November 29, 1996 must receive prorated assistance. In response to the
commenter's second comment, Sec. 5.518(b)(3) provides that the
``aggregate deferral period for deferrals granted prior to November 29,
1996 shall not exceed 3 years.''
Comment: Reference to Refugees and Asylees is Confusing. One
commenter wrote that the reference to refugees and asylees in
Sec. 5.518(b)(3) was confusing, since these individuals have eligible
status under the statute and their presence in a family would not be
cause for terminating assistance or deferring termination any more than
the presence of a citizen would be.
HUD Response. The language of Sec. 5.518(b)(3) exempting certain
categories of noncitizens from the 18-month maximum deferral period
tracks the statutory language of the 1996 Immigration Act. The language
serves to remind responsible entities of the statutory exemption.
Accordingly, the language has been retained.
VI. Nondiscrimination in the Implementation of Section 214
HUD reiterates the statement made in the March 20, 1995 final rule
and the November 29, 1996 interim rule that all regulatory procedures
in implementation of Section 214 must be administered in the uniform
manner prescribed without regard to race, national origin, or personal
characteristics (e.g., accent, language spoken, or familial association
with a noncitizen).
VII. Findings and Certifications
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) reviewed this final rule
under Executive Order 12866, Regulatory Planning and Review. OMB
determined that this interim rule is a ``significant regulatory
action,'' as defined in section 3(f) of the Order (although not
economically significant, as provided in section 3(f)(1) of the Order).
Any changes made to the final rule subsequent to its submission to OMB
are identified in the docket file, which is available for public
inspection in the office of the Department's Rules Docket Clerk, Room
10276, 451 Seventh Street, SW, Washington, DC 20410-0500.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law
104-4; approved March 22, 1995) (UMRA) establishes requirements for
Federal agencies to assess the effects of their regulatory actions on
State, local, and tribal governments, and the private sector. This rule
does not impose any Federal mandates on any State, local, or tribal
governments, or on the private sector, within the meaning of the UMRA.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) has reviewed this final rule before publication and by
approving it certifies that this rule will not have a significant
economic impact on a substantial number of small entities. As explained
in the preamble to the November 29, 1996 interim rule, the
implementation of HUD's noncitizen requirements have only a minimal
impact on small housing project owners, small mortgagees, and small
housing agencies. The amendments made final by this rule do not alter
that previous determination. This final rule does not require the
creation of new procedures or impose significant additional costs on
responsible entities. Rather, the requirements of the final rule can be
satisfied through the use of existing procedures. For example, the
final rule prohibits responsible entities from making assistance
available to a noncitizen until the necessary documentation
establishing eligible immigration status is verified. This requirement
can be fulfilled by utilizing the existing verification procedures.
Likewise, current methods may be used to prorate the assistance
provided to an eligible mixed family receiving continued assistance.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was made at the interim rule stage 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). That finding
continues to be applicable to this final rule and is available for
public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk, Office of General Counsel, Room
10276, Department of Housing and Urban Development, 451 Seventh Street,
SW, Washington, DC.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this final have no federalism implications, and that the
policies are not subject to review under the Order. This interim rule
addresses immigration, a topic exclusively the province of the Federal
government, and the effect is the direct result of the statute that
imposes the restriction against assistance to noncitizens, rather than
a result of HUD's exercise of
[[Page 25731]]
discretion in promulgating a rule to implement the statute.
List of Subjects in 24 CFR Part 5
Administrative practice and procedure, Aged, Claims, Drug abuse,
Drug traffic control, Grant programs--housing and community
development, Grant programs--Indians, Grant programs--low and moderate
income housing, Indians, Individuals with disabilities,
Intergovernmental relations, Loan programs--housing and community
development, Low and moderate income housing, Mortgage insurance,
Penalties, Pets, Public housing, Rent subsidies, Reporting and
recordkeeping requirements, Social security, Unemployment compensation,
Wages.
Accordingly, for the reasons stated in the preamble, 24 CFR part 5
is amended as follows:
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
1. The authority citation for 24 CFR part 5 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), unless otherwise noted.
Subpart E--Restrictions on Assistance to Noncitizens
2. The authority citation for subpart E continues to read as
follows:
Authority: 42 U.S.C. 1436a and 3535(d).
Sec. 5.501 [Removed]
3. Remove Sec. 5.501.
4. Section 5.508 is amended by revising paragraphs (b)(1), (b)(2),
(h)(2) and (h)(3) to read as follows:
Sec. 5.508 Submission of evidence of citizenship, or eligible
immigration status.
* * * * *
(b) * * *
(1) For U.S. citizens or U.S. nationals, the evidence consists of a
signed declaration of U.S. citizenship or U.S. nationality. The
responsible entity may request verification of the declaration by
requiring presentation of a United States passport or other appropriate
documentation, as specified in HUD guidance.
(2) For noncitizens who are 62 years of age or older or who will be
62 years of age or older and receiving assistance under a Section 214
covered program on September 30, 1996 or applying for assistance on or
after that date, the evidence consists of:
(i) A signed declaration of eligible immigration status; and
(ii) Proof of age document.
* * * * *
(h) * * *
(2) Thirty-day extension period. Any extension of time, if granted,
shall not exceed thirty (30) days. The additional time provided should
be sufficient to allow the individual the time to obtain the evidence
needed. The responsible entity's determination of the length of the
extension needed shall be based on the circumstances of the individual
case.
(3) Grant or denial of extension to be in writing. The responsible
entity's decision to grant or deny an extension as provided in
paragraph (h)(1) of this section shall be issued to the family by
written notice. If the extension is granted, the notice shall specify
the extension period granted (which shall not exceed thirty (30) days).
If the extension is denied, the notice shall explain the reasons for
denial of the extension.
* * * * *
5. Section 5.510 is amended by revising paragraph (b) to read as
follows:
Sec. 5.510 Documents of eligible immigration status.
* * * * *
(b) Acceptable evidence of eligible immigration status. Acceptable
evidence of eligible immigration status shall be the original of a
document designated by INS as acceptable evidence of immigration status
in one of the six categories mentioned in Sec. 5.506(a) for the
specific immigration status claimed by the individual.
6. Section 5.512 is amended by:
a. Revising paragraph (a);
b. Adding new paragraph (b); and
c. Redesignating existing paragraphs (b) through (d) as paragraphs
(c) through (e), respectively to read as follows:
Sec. 5.512 Verification of eligible immigration status.
(a) General. Except as described in paragraph (b) of this section
and Sec. 5.514, no individual or family applying for assistance may
receive such assistance prior to the verification of the eligibility of
at least the individual or one family member. Verification of
eligibility consistent with Sec. 5.514 occurs when the individual or
family members have submitted documentation to the responsible entity
in accordance with Sec. 5.508.
(b) PHA election to provide assistance before verification. A PHA
that is a responsible entity under this subpart may elect to provide
assistance to a family before the verification of the eligibility of
the individual or one family member.
* * * * *
7. Section 5.514 is amended by:
a. Revising paragraph (b);
b. Revising paragraph (c)(1);
c. Revising paragraph (e)(1); and
d. Revising paragraph (f)(1), to read as follows:
Sec. 5.514 Delay, denial, reduction or termination of assistance.
* * * * *
(b) Restrictions on delay, denial, reduction or termination of
assistance. (1) Restrictions on reduction, denial or termination of
assistance for applicants and tenants. Assistance to an applicant or
tenant shall not be delayed, denied, reduced, or terminated, on the
basis of ineligible immigration status of a family member if:
(i) The primary and secondary verification of any immigration
documents that were timely submitted has not been completed;
(ii) The family member for whom required evidence has not been
submitted has moved from the assisted dwelling unit;
(iii) The family member who is determined not to be in an eligible
immigration status following INS verification has moved from the
assisted dwelling unit;
(iv) The INS appeals process under Sec. 5.514(e) has not been
concluded;
(v) Assistance is prorated in accordance with Sec. 5.520; or
(vi) Assistance for a mixed family is continued in accordance with
Secs. 5.516 and 5.518; or
(vii) Deferral of termination of assistance is granted in
accordance with Secs. 5.516 and 5.518.
(2) Restrictions on delay, denial, reduction or termination of
assistance pending fair hearing for tenants. In addition to the factors
listed in paragraph (b)(1) of this section, assistance to a tenant
cannot be delayed, denied, reduced or terminated until the completion
of the informal hearing described in paragraph (f) of this section.
(c) Events causing denial or termination of assistance. (1)
General. Assistance to an applicant shall be denied, and a tenant's
assistance shall be terminated, in accordance with the procedures of
this section, upon the occurrence of any of the following events:
(i) Evidence of citizenship (i.e., the declaration) and eligible
immigration status is not submitted by the date specified in
Sec. 5.508(g) or by the expiration of any extension granted in
accordance with Sec. 5.508(h);
(ii) Evidence of citizenship and eligible immigration status is
timely submitted, but INS primary and secondary verification does not
verify eligible immigration status of a family member; and
[[Page 25732]]
(A) The family does not pursue INS appeal or informal hearing
rights as provided in this section; or
(B) INS appeal and informal hearing rights are pursued, but the
final appeal or hearing decisions are decided against the family
member; or
(iii) The responsible entity determines that a family member has
knowingly permitted another individual who is not eligible for
assistance to reside (on a permanent basis) in the public or assisted
housing unit of the family member. Such termination shall be for a
period of not less than 24 months. This provision does not apply to a
family if the ineligibility of the ineligible individual was considered
in calculating any proration of assistance provided for the family.
* * * * *
(e) Appeal to the INS. (1) Submission of request for appeal. Upon
receipt of notification by the responsible entity that INS secondary
verification failed to confirm eligible immigration status, the
responsible entity shall notify the family of the results of the INS
verification, and the family shall have 30 days from the date of the
responsible entity's notification, to request an appeal of the INS
results. The request for appeal shall be made by the family
communicating that request in writing directly to the INS. The family
must provide the responsible entity with a copy of the written request
for appeal and proof of mailing.
* * * * *
(f) Informal hearing. (1) When request for hearing is to be made.
After notification of the INS decision on appeal, or in lieu of request
of appeal to the INS, the family may request that the responsible
entity provide a hearing. This request must be made either within 30
days of receipt of the notice described in paragraph (d) of this
section, or within 30 days of receipt of the INS appeal decision issued
in accordance with paragraph (e) of this section.
* * * * *
8. Section 5.516 is amended by revising the introductory text of
paragraph (c) to read as follows:
Sec. 5.516 Availability of preservation assistance to mixed families
and other families.
* * * * *
(c) Assistance available to other families in occupancy. Temporary
deferral of termination of assistance may be available to families
receiving assistance under a Section 214 covered program on June 19,
1995, and who have no members with eligible immigration status, as set
forth in paragraphs (c)(1) and (2) of this section.
* * * * *
9. Section 5.518 is amended by revising paragraphs (a), (b)(3) and
(b)(5) to read as follows:
Sec. 5.518 Types of preservation assistance available to mixed
families and other families.
(a) Continued assistance. (1) General. A mixed family may receive
continued housing assistance if all of the following conditions are met
(a mixed family assisted under a Housing covered program must be
provided continued assistance if the family meets the following
conditions):
(i) The family was receiving assistance under a Section 214 covered
program on June 19, 1995;
(ii) The family's head of household or spouse has eligible
immigration status as described in Sec. 5.506; and
(iii) The family does not include any person (who does not have
eligible immigration status) other than the head of household, any
spouse of the head of household, any parents of the head of household,
any parents of the spouse, or any children of the head of household or
spouse.
(2) Proration of continued assistance. A family entitled to
continued assistance before November 29, 1996 is entitled to continued
assistance as described in paragraph (a) of this section. A family
entitled to continued assistance after November 29, 1996 shall receive
prorated assistance as described in Sec. 5.520.
(b) * * *
(3) Time limit on deferral period. If temporary deferral of
termination of assistance is granted, the deferral period shall be for
an initial period not to exceed six months. The initial period may be
renewed for additional periods of six months, but the aggregate
deferral period for deferrals provided after November 29, 1996 shall
not exceed a period of eighteen months. The aggregate deferral period
for deferrals granted prior to November 29, 1996 shall not exceed 3
years. These time periods do not apply to a family which includes a
refugee under section 207 of the Immigration and Nationality Act or an
individual seeking asylum under section 208 of that Act.
* * * * *
(5) Determination of availability of affordable housing at end of
each deferral period. (i) Before the end of each deferral period, the
responsible entity must satisfy the applicable requirements of either
paragraph (b)(5)(i)(A) or (B) of this section. Specifically, the
responsible entity must:
(A) For Housing covered programs: Make a determination that one of
the two conditions specified in paragraph (b)(2) of this section
continues to be met (note: affordable housing will be determined to be
available if the vacancy rate is five percent or greater), the owner's
knowledge and the tenant's evidence indicate that other affordable
housing is available; or
(B) For Section 8 or Public Housing covered programs: Make a
determination of the availability of affordable housing of appropriate
size based on evidence of conditions which when taken together will
demonstrate an inadequate supply of affordable housing for the area in
which the project is located, the consolidated plan (if applicable, as
described in 24 CFR part 91), the responsible entity's own knowledge of
the availability of affordable housing, and on evidence of the tenant
family's efforts to locate such housing.
(ii) The responsible entity must also:
(A) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination will
be deferred again (provided that the granting of another deferral will
not result in aggregate deferral periods that exceeds the maximum
deferral period). This time period does not apply to a family which
includes a refugee under section 207 of the Immigration and Nationality
Act or an individual seeking asylum under section 208 of that Act, and
a determination was made that other affordable housing is not
available; or
(B) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination of
financial assistance will not be deferred because either granting
another deferral will result in aggregate deferral periods that exceed
the maximum deferral period (unless the family includes a refugee under
section 207 of the Immigration and Nationality Act or an individual
seeking asylum under section 208 of that Act), or a determination has
been made that other affordable housing is available.
* * * * *
10. Section 5.526 is revised to read as follows:
Sec. 5.526 Protection From liability for responsible entities and
State and local government agencies and officials.
(a) Protection from liability for responsible entities. Responsible
entities are protected from liability as set forth in Section 214(e)
(42 U.S.C 1436a(e)).
[[Page 25733]]
(b) Protection from liability for State and local government
agencies and officials. State and local government agencies and
officials shall not be liable for the design or implementation of the
verification system described in Sec. 5.512, as long as the
implementation by the State and local government agency or official is
in accordance with prescribed HUD rules and requirements.
Dated: April 30, 1999.
Andrew Cuomo,
Secretary.
[FR Doc. 99-11917 Filed 5-11-99; 8:45 am]
BILLING CODE 4210-32-P
