[Federal Register Volume 62, Number 90 (Friday, May 9, 1997)]
[Proposed Rules]
[Pages 25728-25738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12080]
[[Page 25727]]
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Part IV
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 960 and 966
Streamlining the Public Housing Admission and Occupancy Regulations;
Proposed Rule
Federal Register / Vol. 62, No. 90 / Friday, May 9, 1997 / Proposed
Rules
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 960 and 966
[Docket No. FR-4084-P-01]
RIN 2577-AB67
Streamlining the Public Housing Admission and Occupancy
Regulations
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule will revise HUD's regulations that govern
admission and occupancy issues in the public housing program to do the
following: Remove rule text that is repetitive of statutory language
and otherwise streamline the rule; respond to relevant recommendations
of the Public and Assisted Housing Occupancy Task Force report of April
1994; implement a recent statute regarding screening of applicants for
admission and termination of tenancy; add important provisions
concerning application processing, previously found only in a
superseded Annual Contributions Contract between HUD and Housing
Agencies and in HUD Handbooks; and clarify applicability of the part.
The overall goal of this rule is to make the regulations clearer and
more concise and to implement statutory directives.
DATES: Comments due date: July 8, 1997.
The deadline for comments on the information collection
requirements is July 8, 1997, although commenters are advised that a
comment is best assured of having its full effect if it is received by
the Office of Management and Budget (OMB) within 30 days of
publication. See the Public Reporting Burden heading under the Findings
and Certifications section of this preamble regarding the information
collection burden.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Rules Docket Clerk, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410. Communications should refer
to the above docket number and title. Facsimile (FAX) comments are not
acceptable. A copy of each communication submitted will be available
for public inspection and copying between 7:30 a.m. and 5:30 p.m.
weekdays at the above address.
Comments on the information collections contained in the rule,
which are described in detail under the heading, FINDINGS AND
CERTIFICATIONS, must refer to the docket number and title of the
proposed rule and be sent to: Joseph F. Lackey, Jr., HUD Desk Officer,
Office of Management and Budget, New Executive Office Building,
Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Linda Campbell, Director, Marketing,
Leasing and Management Division, Office of Public and Assisted Housing
Operations, Room 4206, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410, telephone number (202) 708-
0744, extension 4020. (This telephone number is not toll-free.) For
hearing-and speech-impaired persons, this number may be accessed via
text telephone by dialing the Federal Information Relay Service at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Regulatory Reinvention Effort
On March 4, 1995, President Clinton issued a memorandum to all
Federal departments and agencies regarding regulatory reinvention. In
response to this memorandum, the Department of Housing and Urban
Development conducted a page-by-page review of its regulations to
determine which can be eliminated, consolidated, or otherwise improved.
HUD has determined that the regulations for 24 CFR, Part 960, Admission
To, And Occupancy Of, Public Housing, can be improved and streamlined
by eliminating unnecessary language. Throughout the part, this rule
shortens and simplifies the provisions retained.
The various subparts of part 960 currently contain their own
sections on purpose, scope, and/or applicability. The statements of
purpose and scope have been eliminated, since they were explanatory
only and the information can be provided in HUD documents other than a
rule. The applicability provisions have been consolidated into one
section in a new subpart A, which deals with general topics. All
statements of OMB approval numbers for information collection
requirements have also been consolidated in that subpart.
Sections on tenant selection policies and standards for tenant
selection criteria (Secs. 960.204 and 960.205) have been streamlined
and consolidated into one section (new Sec. 960.201) entitled,
``Applicant admission policies.'' Examples have been removed, since
they can be provided in HUD guidance documents.
References in the codified rule to reserved subparts and sections
have been removed, to eliminate confusion.
A number of the changes made in this proposed rule increase the
flexibility of housing agencies (``HAs'') administering the program.
For example, Sec. 960.206 now explicitly authorizes HAs to verify
information about an applicant's disability to determine appropriate
accommodations, to verify information relative to qualification for a
preference, and to determine deductions for calculating adjusted
income. It clarifies that the HA makes the final determination of
whether an applicant's failure to meet the HA's tenant selection
criteria is outweighed with respect to these issues. Another example is
the explicit authorization for HAs to adopt income limits for continued
occupancy, found in Sec. 960.210. This responds to the desire of many
HAs to adopt reasonable limits to avoid housing families who can obtain
housing on the private market. In addition, language was removed from
Sec. 960.208 that required a tenant's approval for direct payment of a
utility reimbursement to a utility provider (see discussion below).
II. Statutory Change and Related Change to Bar Admission of Certain
Evicted Tenants
The statutory foundation for the public housing program is the
United States Housing Act of 1937 (42 U.S.C. 1437a, et seq., ``1937
Act''). On March 28, 1996, that Act was amended by the Housing
Opportunity Program Extension Act of 1996 (Pub. L. 104-120, 110 Stat.
834) (``Extender Act''). It makes ineligible for admission to public
housing those individuals who have been evicted from housing assisted
under the 1937 Act (including Section 8 assistance) for drug-related
criminal activity for a three-year period, unless the evicted tenant
has successfully completed a rehabilitation program or the
circumstances leading to the eviction no longer exist.
The statute also requires HAs to prohibit occupancy in any public
housing dwelling unit by any person who the HA determines is illegally
using a controlled substance, or whose pattern of illegal use of a
controlled substance or pattern of alcohol abuse would interfere with
the health, safety, or right to peaceful enjoyment of the premises by
other residents of the project. In this connection, the statutory
amendment authorizes the housing agency administering the program to
determine whether an applicant has
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been rehabilitated from drug or alcohol abuse.
The amendment also provides some specific requirements about the
administration of this applicant screening authority: (1) It requires
law enforcement agencies to provide information to housing agencies
concerning criminal convictions for purposes of applicant screening,
lease enforcement, and eviction; (2) it requires the housing agency to
provide anyone adversely affected by report of a criminal record an
opportunity to dispute the accuracy and relevance of that record before
any adverse action is taken; and (3) it requires that reports of
criminal records be maintained confidentially. The first of these
changes is not the subject of this rule but is the subject of current
intergovernmental coordination efforts. The second and third changes
are being implemented through revisions of the verification procedures
contained in the section now designated as Sec. 960.206(e).
A. Ineligibility of Persons Previously Evicted
This rule interprets the statute's ban on admission of a person
previously evicted for drug-related criminal activity for three years
to be a period of at least three years. Thus, an HA can determine the
period of time it believes reasonable for particular types of drug-
related activity, as long as that period is at least three years long.
This rule also proposes a related change in Sec. 960.201 to make
tenants evicted from housing assisted under the 1937 Act for serious
lease violations ineligible for admission to public housing for an
appropriate period of time. For example, families evicted for
committing crimes against persons or property, and other acts that
affect the health, safety or right to peaceful enjoyment of the
premises by other residents, would be barred from admission to public
housing for a specified period. These proposals will facilitate HUD and
HA efforts to crack down on crime and to impose tougher expectations on
federally assisted tenants, holding them responsible for their actions.
It is noted that in order to determine the eligibility of an
applicant under this proposed rule, an HA needs to know whether the
applicant was evicted from housing assisted under the 1937 Act and
whether the eviction involved drug-related criminal activity. HUD is
specifically requesting public comment on the best means to obtain
information on evictions from privately owned assisted projects and
ways HAs can share this information with each other.
B. Ineligibility of Persons Involved in Drug or Alcohol Abuse
The Extender Act requires that HAs prohibit occupancy in public
housing by any person engaged in illegal use of a controlled substance
or any person that the HA has reasonable cause to believe is engaged in
a pattern of illegal use of a controlled substance or abuse (or a
pattern of abuse) of alcohol that ``may interfere with the health,
safety, or right to peaceful enjoyment of the premises by other
residents of the project.'' This rule implements that provision by
requiring HAs to establish screening criteria to prevent admission of
such ineligible persons and by requiring HAs to establish standards for
evicting tenants related to illegal drug use and alcohol abuse. (See
Secs. 960.201(c)(1).) Since the Extender Act makes these same standards
the basis for termination of tenancy as well as for denial of
admission, this rulemaking revises the provisions of current
regulations pertaining to grounds for termination of tenancy,
Sec. 966.4(l), to add them.
In addition, consonant with the Department's overall efforts to
make public housing safe and following the pattern of Section 8
regulations (Sec. 982.553), this proposed rule provides that the HA may
deny admission or evict a tenant at any time if the HA determines that
any family member has engaged in drug-trafficking or violent criminal
activity. (Definitions of these terms are added to the rule.)
C. Criminal Background Checks
The rule currently requires, at Sec. 960.206(a), that ``[a]dequate
procedures must be developed to obtain and verify information with
respect to each applicant.'' It also suggests as sources of information
``parole officers, court records, drug treatment centers, clinics,
physicians or police departments where warranted by the particular
circumstances.'' That section is being revised to provide, at paragraph
(c)(1), that verification procedures include a ``criminal background
check of all adult household members to identify any recent history of
crimes of physical violence to persons or property and other activities
that would adversely affect the health, safety or welfare of others.''
The enactment of the Extender Act makes it clear that Congress
wants applicants who are admitted to public housing to be carefully
screened for criminal and antisocial behavior, so that public housing
developments will be more desirable places to live. HUD concludes that
HAs must carefully screen applicants to assure that they are carrying
out the new statutory provisions making ineligible for admission
persons involved in drug use and alcohol abuse or previously evicted
for drug-related activity and requiring that law enforcement agencies
make available information about criminal records.
To assure that screening is thorough and is not conducted in a
discriminatory way, the proposed rule provides that HAs must do a
criminal background check on all adult household members of each
applicant family. The rule requires HAs to access an individual's
criminal history records from a local, State, or Federal government
entity with law enforcement responsibility. The type of criminal
background check done is left to the discretion of the HA, based on
local circumstances.
This approach was discussed at a meeting in the summer of 1996 with
representatives of housing agency officials (National Association of
Housing and Redevelopment Officials, Council of Large Public Housing
Authorities, and Public Housing Authority Directors Association).
Although there was not unanimous support for this position among those
officials, the Department has determined that benefits will outweigh
the costs, as described below, and that the policy should be
implemented. Of course, public comments are invited on this subject, as
on other elements of this proposed rule.
When considering what type of check to do, an HA may consider
factors described in this rule preamble. Local and county records,
which may contain records of misdemeanors, as well as felonies, are
generally available free or for only a small fee. This type of
background check may be appropriate for long-term residents of the
locality or county. State records are available, for fees that vary
widely, and may be appropriate to check on the background of an
applicant that has moved from other localities within a State. In some
parts of the country, states have created networks through which HAs
can access criminal records from all participating states through one
request.
Another possible source is the National Crime Information Center
(NCIC), which provides information about felonies and many
misdemeanors. At this point, most HAs do not have access to NCIC
records, but HUD is working with other Federal agencies to develop
procedures so that this option can be pursued where it is deemed
appropriate.
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A large number of HAs have residency preferences (including New
York, Puerto Rico, and Chicago--administering a total of 284,000
units), which, combined with long waiting lists, result in admission
primarily of local residents, or those who work in the locality.
Background checks on local residents can often be done through local,
county, or State systems. In the HAs that have residency preferences,
non-local residents rarely reach the top of the waiting list and the
stage of screening that involves the criminal background check.
The range of effort an HA undertakes may vary from having the
applicant get a document from the local police department or sheriff's
office that indicates whether or not the applicant has a criminal
record, and the nature of any such record, to having the applicant
fingerprinted and checking these prints and other pertinent data with
the NCIC. The former method has the advantage that applicants who know
they have a criminal history may choose to withdraw their applications,
thus screening themselves out of the applicant pool. The cost may range
from nothing, to $1 for a name check with local authorities using a
diskette for computerized access, to $10 for a name check with NCIC, to
$25 for a fingerprint check with NCIC. In no event will the applicant
be charged to cover the cost of the criminal background check.
The cost to HAs, in the aggregate, to conduct the required
background check, which many are already doing under the existing
regulations, is estimated as follows. There are approximately 1.3
million public housing households. Of these, there is turnover in 13%
of the units each year, producing a need to do applicant screening to
fill 169,000 units per year. Considering that criminal background
checks will be done on the adults in applicant households that have
already passed other standard screening procedures, it is likely that
1.5 households will be checked for each of the 169,000 admissions. That
results in 253,000 households being checked. At an average of 1.2
adults per household, the requirement to check all adult members of an
applicant household would require 303,600 individuals to be checked.
We estimate that 95% of these criminal background checks could be
done at the local, county, or State level. The cost of this type of
check varies widely, from about $1 to more than $15. Using a relatively
high estimate of approximately $10 per person, the total annual cost
for this category of background check would be $2,884,200. Another 3%
of the checks would probably be done through a name check with the
NCIC, at a ballpark estimate of $10 per person--for a total cost of
$91,080. The last 2% would be checked via the fingerprint check with
the NCIC, at an approximate cost of $25 (not including the cost of
obtaining the applicant's fingerprints)--for a total cost of $151,800.
Altogether, the cost then would be $3,127,080.
The HAs cover the cost of all their screening activities, as well
as the cost of other operations, such as evictions, through HUD
operating subsidy and rental and other income. If an HA does not
properly screen applicants, both tangible and intangible costs will be
incurred. The tangible costs to the HA will include the cost of
evicting a tenant involved in criminal activity.
Costs associated with an eviction, if the HA uses its own counsel,
are estimated to be in the range of $450 to $700 for each eviction,
provided there is no appeal. If there is an appeal or a jury trial, the
HA is likely to spend, at a minimum, $2,000 per eviction. These
estimates do not include the HA staff time devoted to documentation of
problems with the tenant family that takes place before the
commencement of an eviction action.
The cost of doing adequate screening at the point of admission (at
$1-$25 per adult) is an investment in effective management of public
housing developments. Lease enforcement--via eviction--is much more
costly. Using the high estimate of $25 per adult, the cost per
household of universal adult screening is $30, which compares very
favorably with an eviction cost of $450 to $2,000.
The intangible costs associated with failing to do adequate
criminal background checks would include the effect on neighbors in the
development whose peaceful enjoyment of the premises would be impeded
by the presence of tenant families involved in criminal activity. These
neighbors' dissatisfaction with the development might produce an
undesirable image for the development and increased turnover and
vacancies in the development. Of course, such turnover would result in
costs for cleaning units and additional applicant screening to fill the
units, and if units could not be filled because of a negative image of
the development, loss in rental income resulting from vacancies.
Complaints to the HA staff about tenants who might have been prevented
from being admitted if a criminal background check had been completed
would require staff to devote time to meet with affected families to
attempt to resolve the situation, as well as action necessary to evict
the families whose illegal activities could not be terminated by any
other means.
The Department concludes that, in fulfillment of the statutory
mandate to screen applicants to prevent admission of those who are
involved in illegal drug use and drug-related criminal activity or who
have been evicted previously for such activity and to terminate the
tenancy of persons whose use of illegal drugs or abuses of alcohol
interferes with the use of the premises by other residents, applicants
must be screened for criminal activity. Considering the costs
associated with criminal background checks and the tangible and
intangible costs of failure to do adequate criminal background checks,
the Department has determined that requiring such checks on all adults
in applicant households before admission of a family is justified as a
means of satisfying the statutory objective.
III. Annual Contributions Contract and Handbook Provisions
The Department revised the standard contract between it and housing
agencies, called the Annual Contributions Contract (``ACC''), in the
July 1995 revision streamlining and replacing the November 1969
version. The 1969 standard ACC contained requirements that are no
longer found in the new ACC but are still to be kept in force.
Therefore, this rule is adding to part 960 some requirements formerly
found in the ACC, or in HUD Handbooks, on the subject of applications,
waiting lists, and tenant selection and assignment.
A new subpart C requires HAs to obtain a written application from
each applicant, and it builds on the framework established in 24 CFR
1.4 for tenant selection and assignment plans and use of waiting lists.
IV. Occupancy Task Force
In 1993, the Secretary established a task force to review all
rules, policy statements, handbooks, technical assistance memoranda,
and other relevant documents issued by the Department on the standards
and obligations governing residency in federally assisted housing, to
comply with Section 643 of the Housing and Community Development Act of
1992 (42 U.S.C. 13603).
This task force was comprised of individuals representing the
interests of owners, managers, and tenants of federally assisted
housing, HAs, owner and tenant advisory organizations, persons with
disabilities and disabled families, organizations assisting homeless
individuals, and social
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service, mental health and other nonprofit servicers and providers who
serve federally assisted housing. Members of the task force were
directed to review all existing standards, regulations, and guidelines
governing occupancy and tenant selection policies in federally assisted
housing, as well as lease provisions and other rules of occupancy for
federally assisted housing, to determine whether the standards,
regulations and guidelines provide sufficient guidance to owners and
managers of federally assisted housing to:
(1) Develop procedures for preselection inquiries sufficient to
determine the capacity of the applicants to comply with reasonable
lease terms and conditions of occupancy;
(2) Use leases that prohibit behavior which endangers the health
and safety of other tenants or HA employees or violates the rights of
other tenants to peaceful enjoyment of the premises;
(3) Assess the need to provide, and appropriate measures for
providing, reasonable accommodations required under the Fair Housing
Act and Section 504 of the Rehabilitation Act of 1973 for persons with
various types of disabilities; and
(4) Comply with civil rights laws and regulations.
The task force made the necessary review, conducted several public
hearings across the country, and received written comments. As
mandated, the task force submitted to the Secretary and Congress a
final report on April 7, 1994 that set forth the task force's
recommendations for occupancy criteria in federally assisted housing,
standards for the reasonable performance and behavior of tenants of
federally assisted housing, compliance standards consistent with the
reasonable accommodation of the requirements of the Fair Housing Act
and section 504 of the Rehabilitation Act of 1973, standards for
compliance with other civil rights laws, and procedures for the
eviction of tenants not complying with such standards consistent with
sections 6 and 8 of the 1937 Act.
Some of the recommendations were directed to the Congress, and
others would require the appropriation of funds for their
implementation. Those recommendations are not covered by this proposed
rule.
Most of the remaining recommendations do not require implementation
through the rulemaking process but rather through the promulgation of
guidance. The Department is committed to minimizing the regulatory
burden on the housing agencies. As a result, the only recommendations
that are covered in this proposed rule are those related to 24 CFR part
960 that require an explicit, enforceable requirement on the HAs or for
which the existing regulation must be modified to be consistent with
Task Force recommendations. The Department intends to address and adopt
other Task Force recommendations in future revisions of other
regulations, such as 24 CFR part 966, covering leases and grievance
procedures, and in future training.
The Task Force recommended that HUD provide broader coverage with
respect to requiring that HAs provide reasonable accommodations to
applicants whose applications would be denied, considering what
accommodations could be provided that would permit the applicants to
comply with program requirements. The revised Sec. 960.206 addresses
this issue.
The Task Force recommended that HUD require all housing providers
to ask all applicants at the point of initial contact whether they need
another form of communication other than plain language paperwork. Some
alternatives recommended were providing sign language interpretation;
having material explained orally by staff, either in person or by
phone; providing large type materials; offering information on tape; or
having some third party representative (a friend, relative or advocate,
named by the applicant) accompany the applicant to receive, interpret
and explain housing materials and be present at all meetings and
discussions. The Department has decided to require that applicants be
informed of alternative forms of communication that can be used, upon
the request of an applicant. The provision (in Sec. 960.207) is worded
in the form of providing information to applicants instead of asking
applicants what they need, to respect their privacy.
The Task Force recommended that HUD require housing providers to
include in all letters rejecting applicants a notice asking applicants
with disabilities who are being rejected to request an interview to
determine whether a reasonable accommodation would enable them to
comply with essential lease provisions. This recommendation has been
accepted and embodied in the same section.
V. Description of Specific Changes
A. General
The entire part has been rewritten, instead of amending some of the
existing parts. The new subpart A describes the applicability of the
part, clarifying a possible confusion about what leased housing
projects are covered--units leased by the HA from a private owner and
then subleased to tenants under the Section 23 or the Section 10(c)
programs are covered. This subpart also describes the authorization for
information collections.
B. Subpart B--Admission, Rent, and Reexamination of Income
When the rule governing Federal preferences was issued, on March 6,
1996, it removed Sec. 960.203 covering nondiscrimination requirements
when it added a provision (Sec. 5.410(i)) imposing the requirements
with respect to administration of selection preferences. However, the
scope of that provision did not clearly apply to all tenant selection
and occupancy determinations made by an HA. Therefore, this rule
restores a Sec. 960.203 to apply those nondiscrimination provisions to
all such activities. To minimize repetition of lists of statutory
references in its rules, the Department cross-references the list
already stated in that rule.
While that change restores language previously removed, another
change to this subpart eliminates reference to utility reimbursements,
in Sec. 960.208. Utility reimbursements are payments to, or on behalf
of, tenants who pay their own utility bills in cases where the utility
allowance applicable to their unit exceeds their payment for rent,
based on their income. Currently, six percent of the total population
of public housing residents have a utility allowance that is greater
than their payment for rent (``total tenant payment'' under 24 CFR part
5). These households are, therefore, entitled to receive a utility
reimbursement. This means that HAs currently send out approximately
75,000 checks monthly to tenants, if tenants have not consented to
direct payment to the utility company.
The method of paying utility reimbursements is now covered in both
part 960 and the rule defining income that is applicable to the public
housing program, now found in 24 CFR part 5 (a broader rule applicable
to all programs administered under the 1937 Act). The current
provisions require that before an HA can pay a utility reimbursement
directly to the utility company, it must obtain the consent of the
tenant.
This proposed rule eliminates reference to utility reimbursements
from part 960, so that treatment of these reimbursements will be
covered in only one part. The final rule based on this proposed rule
will include a revision to the income reimbursement provision in part 5
to permit an HA, with the consent
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of the utility company--but without obtaining consent of the tenant--to
pay the reimbursement directly to the utility company on the tenant's
behalf. This change is intended to assure that the funds are used for
their intended purpose and to save HAs money by consolidating the
number of utility reimbursement checks they must issue from several to
one. The Department believes that the change will have no adverse
impact on tenants, but specifically invites public comments on this
change.
As mentioned above with respect to Task Force recommendations,
Sec. 960.207 has been significantly revised. The title reflects that
change. It is no longer ``Notification to Applicants'' but is
``Communication With Applicants.''
With respect to reexamination of family income and composition,
Sec. 960.209, the rule is being revised to provide that the HA shall
prescribe the conditions under which changes in circumstances between
annual reexaminations must be reported.
C. Subpart C--Applications, Waiting List, Tenant Selection and
Assignment
This subpart prescribes requirements for waiting lists and tenant
selection and assignment policies adopted pursuant to 24 CFR
1.4(b)(2)(ii). Section 1.4 requires HAs to use a community-wide waiting
list, but permits HAs to seek an exception from this requirement where
the exception would be consistent with title VI of the Civil Rights Act
of 1964, 42 U.S.C. 2000d-1, and the purposes of 24 CFR part 1.
In the waiting list section of this rule, Sec. 960.303,
clarification is given that HAs may divide their waiting list into
separate categories for general occupancy projects, for mixed
population projects, for projects designated for elderly families, and
for projects designated for disabled families, provided that all
applicants are given an opportunity to be on the waiting list for any
category of project for which they are qualified. This provision is
intended to permit operation of projects that were previously approved
as projects designated for elderly and disabled families in accordance
with their designation, while permitting families eligible for that
housing to also seek admission to other projects.
The tenant selection and assignment provisions of 24 CFR 1.4 have
been augmented in Sec. 960.304 by a provision that explicitly permits
an HA to deal with an applicant who refuses offered units a prescribed
number of times by removing the applicant from the waiting list
entirely. This additional option provides an HA with greater
flexibility in administering its program. This new section also
specifies that the number of offers to be given an applicant before
such action shall not exceed three. Of course, the HA's tenant
selection and assignment plan remains subject to HUD review, in
accordance with 24 CFR 1.4.
The provisions concerning a preference for elderly families and
disabled families in mixed population projects now found in subpart D
of part 960 are consolidated into one section (Sec. 960.307) in this
subpart.
D. Subpart D--Exemption From Eligibility Requirements for Police
Officers and Other Security Personnel
This subpart permits the admission to public housing of police
officers and other security personnel, who are not otherwise eligible
under any other admission requirements, under a plan submitted by a
housing agency (HA) and approved by the Department, to increase their
visible presence to serve as a deterrent to criminal activity in and
around public housing.
VI. Findings and Certifications
A. Public Reporting Burden
The information collection requirements contained in this rule, as
described in Secs. 960.201, 960.206, 960.207, 960.209, 960.301,
960.303, 960.304, and 960.405 are being submitted to the Office of
Management and Budget for review under the Paperwork Reduction Act of
1995 (42 U.S.C. 3501-3520).
1. In accordance with 5 CFR 1320.5(a)(1)(iv), the Department is
setting forth the following concerning the proposed collections of
information:
(a) Title of the information collection proposal: Public Housing
Admission and Occupancy Policies.
(b) Summary of the collection of information: The information
collected covers the following: (1) Policies on applicant admission,
including procedures for selection of applicants, verification of
applicant data and criminal history records, communication with
applicants, maintenance of waiting lists, and tenant selection and
assignment; (2) provision for reexamination of family income; and (3) a
plan for housing security officers.
(c) Description of the need for the information and its proposed
use: The information collected is needed to monitor compliance with HUD
public housing program requirements authorized by statute to assure
that sound management practices will be followed in the operation of
the projects, consistent with the obligations of the HAs under the
United States Housing Act of 1937, 42 U.S.C. 1437, et seq.
(d) Description of the likely respondents, including the estimated
number of likely respondents, and proposed frequency of response to the
collection of information: The likely respondents are the approximately
3,300 HAs that administer public housing units. The information is
collected only once, unless an HA changes its policy.
(e) Estimate of the total reporting and recordkeeping burden that
will result from the collection of information: The total number of
burden hours for this collection of information is estimated to be
344,800 hours, including the time for reviewing instructions, gathering
and maintaining the data. The actual burden to HAs is minimal, since
the collections are already a part of the day-to-day operation of the
HAs. The only collections actually sent to HUD are those described in
Sec. 960.201 (Applicant Admission Policies), in Sec. 960.304 (Tenant
Selection and Assignment Plan) and in Sec. 960.405 (Plan Standards and
Criteria for Admission of Police Officers). All other collections are
developed and maintained at the HA. It is difficult to determine a cost
per hour due to the different organizational structure of HAs and the
various collections being performed by different individuals. No
outside consultation was necessary to ascertain data collection
requirements. The information is not reported to the Department on a
form.
[[Page 25733]]
Reporting Burden
----------------------------------------------------------------------------------------------------------------
Est. ave.
Type of collection Proposed section of 24 CFR Number of Frequency response Annual
affected respondents of response time (hrs.) burden hrs.
----------------------------------------------------------------------------------------------------------------
Policies on Applicant 960.201, 960.206, 960.207, 3,300 1 68 224,400
Admission. 960.209, 960.304
Procedures for Applications & 960.301, 960.303 3,300 1 36 118,800
Waiting Lists.
Submission of Plan to Exempt 960.405 800 1 2 1,600
Police Officers from
Eligibility Requirements.
---------------------------------------------------------------------------------
Total Burden.............. ............................ ........... ........... ........... 344,800
----------------------------------------------------------------------------------------------------------------
2. In accordance with 5 CFR 1320.8(b)(3), the Department makes the
following statement:
The reason for collecting the information is to permit housing
agencies to collect necessary information from program applicants to
determine their eligibility for participation in the program, and to
permit HUD to monitor housing agencies' activities. HUD uses the
information it collects to ensure that the policies and procedures
adopted by the housing agencies in administration of the public housing
program are consistent with requirements of the authorizing legislation
and applicable nondiscrimination laws. The information submitted to HUD
is public information and does not lend itself to confidentiality.
Information submitted to a housing agency in the verification of
applicant data is not public information and is subject to statutory
requirements concerning confidentiality (42 U.S.C. 1437d(q)(4)). In
accordance with the Paperwork Reduction Act, HUD may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless the collection displays a currently valid OMB
control number.
3. In accordance with 5 CFR 1320.8(d)(1), the Department is
soliciting comments from members of the public and affected agencies
(see DATES and ADDRESSES sections above) concerning the proposed
collection of information to:
(a) 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;
(b) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(c) Enhance the quality, utility, and clarity of the information to
be collected; and
(d) 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.
B. Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this proposed rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This proposed rule
would amend occupancy and tenant selection policies in the Public
Housing program. The Department recognizes that uniform application of
requirements on entities of differing sizes may place a
disproportionate burden on small entities. Therefore, the Department
invites small entities to suggest alternatives ways of compliance with
the basic provisions of this proposed rule about how they might comply
in a way less burdensome to them.
C. Environmental Impact
This proposed rulemaking does not have an environmental impact.
This proposed rulemaking simply amends an existing regulation by
consolidating and streamlining provisions and does not alter the
environmental effect of the regulations being amended. A Finding of No
Significant Impact with respect to the environment has been made in
accordance with HUD regulations in 24 CFR part 50 that implement
section 102(2)(C) of the National Environmental Policy Act of 1969 (42
U.S.C. 4332).
D. Federalism Impact
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule do not have significant impact on
States or their political subdivisions, or the relationship between the
Federal Government and State and local governments, or on the
distribution of power and responsibilities among the various levels of
government. As a result, the proposed rule is not subject to review
under the Order. The proposed rule merely streamlines existing
regulations and implements certain statutory requirements with respect
to admission and occupancy of housing funded by the Federal Government
but administered by local entities.
E. Impact on the Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule will
not have the potential for significant impact on family formation,
maintenance, or general well-being, and thus is not subject to review
under the Order.
F. Unfunded Mandates Reform Act
The Secretary, in accordance with the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1532, has reviewed this proposed rule before
publication and by approving it certifies that this proposed rule does
not impose a Federal mandate that will result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year.
G. Regulatory Review
This proposed rule was reviewed by the Office of Management and
Budget under Executive Order 12866, not on the basis of impact in
excess of $100 million but on the basis of its importance. Any changes
made in this proposed rule as a result of that review are clearly
identified in the docket file for this proposed rule, which is
available for public inspection in the HUD's Office of the Rules Docket
Clerk, Room 10276, 451 Seventh Street, SW., Washington, DC 20410-0500.
Catalog
The Catalog of Federal Domestic Assistance number for the program
affected by this proposed rule is 14.850.
[[Page 25734]]
List of Subjects
24 CFR Part 960
Aged, Grant programs--housing and community development,
Individuals with disabilities, Reporting and recordkeeping
requirements, Public housing.
24 CFR Part 966
Grant programs--housing and community development, Public housing.
Accordingly, in title 24 of the Code of Federal Regulations, parts
960 and 966 are proposed to be amended as follows:
1. Part 960 is revised to read as follows:
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
Subpart A--General
Sec.
960.101 Applicability.
960.105 Approved information collections.
Subpart B--Admission, Rent, and Reexamination
960.201 Applicant admission policies.
960.203 Nondiscrimination requirements.
960.206 Verification procedures.
960.207 Communication with applicants.
960.208 Rent.
960.209 Reexamination of family income and composition.
960.210 Continued occupancy limits.
Subpart C--Applications, Waiting List, Tenant Selection, and Assignment
960.301 Applications.
960.303 Waiting lists.
960.304 Tenant selection and assignment.
960.307 Mixed population projects.
Subpart D--Exemption From Eligibility Requirements for Police Officers
and Other Security Personnel
960.401 Exemption from eligibility requirements.
960.402 Definitions.
960.405 Plan standards and criteria.
960.409 Special rent requirements and other terms and conditions.
960.411 Applicability of the annual contributions contract; effect
on the Performance Funding System.
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, and 3535(d).
Subpart A--General
Sec. 960.101 Applicability.
This part is applicable to all dwelling units assisted under the
1937 Act in projects owned by or leased to HAs and leased or subleased
by HAs to tenants, including Section 23 and Section 10(c) leased
housing projects directly operated by the HA. This subpart is not
applicable to the Low-Rent Housing Homeownership Opportunities Program
(Turnkey III); to the Indian Housing Rental, Turnkey III and Mutual
Help Homeownership Opportunities Program; or to units assisted under
Section 8 of the 1937 Act, 42 U.S.C. 1437f.
Sec. 960.105 Approved information collections.
The following sections of the part have been approved by the Office
of Management and Budget in accordance with the Paperwork Reduction Act
of 1995 and assigned the OMB approval number indicated:
------------------------------------------------------------------------
Approval No. Sections
------------------------------------------------------------------------
2577-............................ 960.201, 960.206, 960.207, 960.301,
960.303, 60.304, and 960.405
2577-............................ 960.209
------------------------------------------------------------------------
Subpart B--Admission, Rent, and Reexamination of Income
Sec. 960.201 Applicant admission policies.
(a) General. The HA must admit to public housing only families that
are qualified for admission, as follows:
(1) They are eligible in terms of income, family composition and
citizenship or immigration status;
(2) Their past behavior indicates that they can be reasonably
expected to comply with the lease;
(3) No family member has been evicted from housing assisted under
the 1937 Act for drug-related criminal activity during a reasonable
time period specified by the HA, which is not less than three years
from the date of the eviction. Notwithstanding the immediately
preceding sentence, the HA may, in its discretion, determine that the
family is eligible for admission if the HA determines that the evicted
family member who was engaged in drug-related criminal activity has
successfully completed a rehabilitation program approved by the HA or
that the circumstances leading to the eviction no longer exist (e.g.,
the evicted family member involved in drugs is no longer in the
household because of incarceration); and
(4) No family member has been evicted from housing assisted under
the 1937 Act for other serious violations of the lease during a
reasonable time period specified by the HA, unless the HA determines
that the circumstances leading to the eviction no longer exist.
(b) Criminal activity by family members. At any time, the HA may
deny admission to an applicant if the HA determines that any family
member has engaged in drug-trafficking or violent criminal activity.
For purposes of this section, drug-trafficking means the illegal
manufacture, sale, or distribution, or the possession with intent to
manufacture, sell, or distribute, of a controlled substance (as defined
in section 102 of the Controlled Substances Act (21 U.S.C. 802)). For
purposes of this section, violent criminal activity means any illegal
criminal activity that has as one of its elements the use, attempted
use, or threatened use of physical force against the person or property
of another.
(c) Written policies and procedures. The HA must adopt and
implement written policies for admission of tenants and procedures
identifying standards and criteria for tenant selection that comply
with the provisions of the 1937 Act, 42 U.S.C. 1437d, and applicable
civil rights requirements, including the following elements:
(1) Policies on illegal drug use and abuse of alcohol.
(i) The HA must establish standards for denying admission if the HA
determines that:
(A) Any Family member is illegally using a controlled substance; or
(B) There is reasonable cause to believe that a Family member's
illegal use or pattern of illegal use of a controlled substance or
abuse or pattern of abuse of alcohol may interfere with the health,
safety, or right to peaceful enjoyment of the premises by other
residents.
(ii) In determining whether to deny admission for illegal use or
pattern of use of a controlled substance or for abuse or pattern of
abuse of alcohol, the HA may consider whether the person:
(A) Is no longer engaging in the illegal use of a controlled
substance or in abuse of alcohol (as applicable); or
(B) Has successfully completed a supervised drug or alcohol
rehabilitation program (as applicable), has otherwise been
rehabilitated successfully, or is participating in a supervised drug or
alcohol rehabilitation program (as applicable).
(2) Requirements for applications and waiting lists. (See 24 CFR
1.4 and subpart C of this part). A dwelling unit must not be allowed to
remain vacant for the purpose of awaiting an application from a family
falling within a particular income range or for any other preference;
(3) Policies for selection of applicants from the waiting list.
Selection policies must include:
(i) Preferences. Federal preferences (if any), and any ranking or
local preferences, and how they are applied. (See 24 CFR part 5,
subpart D, for applicable requirements.)
(ii) Tenant selection and assignment plan. The organization of the
waiting
[[Page 25735]]
list, how applicants are assigned to specific projects and dwelling
units, and the precedence of transfers over admissions;
(iii) General screening criteria. Applicant screening criteria and
information to be considered must be reasonably related to each
applicant's individual attributes and behavior, and not imputed to a
particular group or category of persons of which an applicant may be a
member. These criteria must be related to whether an applicant's
conduct would be likely to interfere with other residents by adversely
affecting their health, safety or welfare or the physical environment
or the financial stability of the project if the applicant were
admitted.
(4) Policies for participant transfer between units, projects, and
programs. These shall include a policy on the transfer to a standard
unit of an applicant who was admitted to an accessible unit but does
not need its special features when an applicant who does need the
unit's special features is being admitted.
(d) Availability of policies. These policies must be available in
each office where applications are received and be furnished to
applicants or tenants upon request, free or at their expense, at the
discretion of the HA. A copy must be submitted to HUD upon request.
(e) Tenant Advisory Boards. The HA may establish Tenant Advisory
Boards for consultation in connection with the tenant selection
process.
Sec. 960.203 Nondiscrimination requirements.
The HA must administer its system of tenant selection and
determinations concerning continued assistance in accordance with the
nondiscrimination requirements specified with respect to selection
preferences in 24 CFR 5.410.
Sec. 960.206 Verification procedures.
(a) General. (1) The HA must develop procedures to obtain and
verify information with respect to each applicant's qualification for
admission. (See 24 CFR part 5, subpart B.) Information relative to the
acceptance or rejection of an applicant and the granting or denial of a
preference under 24 CFR part 5 must be documented and placed in the
applicant's file. The methods of verification and documentation must be
specified in writing.
(2) Relevant information to verify with respect to an applicant's
qualification may include, but is not limited to:
(i) An applicant's past performance in meeting financial
obligations, especially rent; and
(ii) A record of violent criminal activity, drug-trafficking,
destruction of property, disturbance of neighbors, or living or
housekeeping habits that may adversely affect the health, safety or
welfare of others.
(b) Disabilities. (1) With respect to applicants claiming that they
have a disability, the HA may verify the claim only to the extent
necessary to ensure:
(i) That applicants are qualified for the housing for which they
are applying;
(ii) That applicants are qualified for the deductions used in
determining adjusted income;
(iii) That applicants are entitled to any preference they may
claim; and
(iv) That applicants who have requested a reasonable accommodation
have a need for the requested accommodation. For purposes of this part,
``reasonable accommodation'' means special action(s) to overcome
barriers to equal access in order to provide access to the HA's
programs and activities for a person with a disability.
(2) An applicant who does not want to be considered on the basis of
a disability does not have to reveal the existence of a disability. The
HA may not inquire about a disability if none is revealed by the
applicant.
(3) If an applicant does not satisfy the HA's tenant selection
criteria because of a disability, the HA must, if requested by the
applicant:
(i) Consider whether any mitigating circumstances related to the
disability could be verified to explain and overcome the problematic
conduct; and
(ii) Make a reasonable accommodation that will allow the applicant
to meet the HA's tenant selection criteria.
(c) Criminal activity.--(1) Background check. The HA must perform a
criminal background check of all adult household members to identify
any recent history of crimes of physical violence to persons or
property and other activities that would adversely affect the health,
safety or welfare of others. The type of criminal background check done
is within the discretion of the HA. For purposes of this paragraph
(c)(1), a criminal background check is accessing an individual's
criminal history records from a local, State, or Federal government
entity with law enforcement responsibility or with responsibility for
maintaining governmental records relating to criminal acts.
(2) Standard of evidence. In determining whether to deny admission
to a family based on drug-related criminal activity or violent criminal
activity, the HA may act where the preponderance of evidence indicates
that a family member has engaged in such activity, regardless of
whether the family member has been arrested or convicted.
(d) Documentation of rehabilitation from drug or alcohol abuse. The
HA may require a family member who has engaged in the illegal use of a
controlled substance, or in abuse of alcohol that interfered with the
health, safety, and peaceful enjoyment of the premises by other
residents, to submit evidence of current participation in, or
successful completion of, a supervised drug or alcohol rehabilitation
program (as applicable) as a condition to admission.
(e) Treatment of unfavorable information.--(1) General. If
unfavorable information is received about an applicant's ability to
meet the tenant selection criteria, consideration must be given to
mitigating circumstances such as the time, nature, and extent of the
applicant's conduct and to factors that in the judgment of the HA
indicate a reasonable probability of favorable future conduct.
(2) Criminal record. If the unfavorable information is a criminal
record, the HA must safeguard the record in accordance with 42 U.S.C.
1437d(q) (4) and must provide the applicant a copy of the record and an
opportunity to dispute the accuracy and relevance of the record.
(f) Final determination. After appropriate verification, the HA
makes the final determination as to whether a claim of mitigating
circumstances or a proposed accommodation is sufficient to overcome a
failure to meet the HA's tenant selection criteria.
Sec. 960.207 Communication with applicants.
(a) Form of communication. At the initial point of contact with
each applicant, the HA must inform the applicant that forms of
communication other than standard written communication, such as oral
explanation, sign language, large print, audiotape, or braille, can be
made available to the applicant, upon request. If the applicant
requests that the HA use an alternative form of communication, the HA
must use the agreed upon alternative form, in addition to its written
communication, until the applicant requests another form of
communication or notifies the HA that an alternative form of
communication is no longer necessary.
(b) Notification of denial. The HA must promptly notify any
applicant determined unqualified for admission to a project of the
basis for such
[[Page 25736]]
determination, and must provide the applicant upon request, within a
reasonable time after the determination is made, with an opportunity to
meet with a representative of the HA to review the determination. This
meeting may be conducted by any person or persons designated by the HA,
including the person who made or reviewed the original determination.
The notification must inform the applicant of the HA's responsibility
to make reasonable accommodation for applicants with disabilities and
the applicant's right to propose a reasonable accommodation to enable
the applicant to comply with eligibility criteria.
(c) Notification of acceptance. When the HA determines that an
applicant is qualified for admission, the applicant must be notified of
the approximate date of occupancy insofar as that date can be
reasonably determined. Notification of the waiting period of similar
applicants who are currently being admitted will meet this requirement.
Sec. 960.208 Rent.
The amount of rent payable by the tenant to the HA is the Tenant
Rent, as defined in part 5 of this title.
Sec. 960.209 Reexamination of family income and composition.
(a) Regular reexaminations. When the HA reexamines the income and
composition of tenant families in accordance with 24 CFR part 5,
subpart F, it must determine whether the family's unit size is still
appropriate. In accordance with that rule, after consultation with the
family and upon verification of the information, the HA must make
appropriate adjustments in tenant rent. See requirements concerning
consent forms for income and eligibility requirements (including
citizenship or immigration status) in 24 CFR part 5, subparts B and E.
(b) Interim redeterminations. The HA must adopt policies
prescribing when and under what conditions tenant changes in
circumstances must be reported and prescribing the effective date of
rent changes resulting from interim redeterminations. The tenants must
comply with provisions in the lease regarding interim reporting of
changes. If the HA receives information concerning a change in the
tenant income or other circumstances between regularly scheduled
reexaminations that would require a redetermination under its policy,
the HA must consult with the family and make any adjustments determined
to be appropriate. Any change in the family's circumstances that
results in adjustment in the Tenant Rent must be verified. See 24 CFR
part 5 for other applicable requirements. At any interim
redetermination when there is a new family member, the HA must follow
the requirements of 24 CFR part 5 concerning obtaining and processing
information on the citizenship or eligible immigration status of the
new family member.
(c) Termination. For provisions requiring termination of tenancy
for failure to establish citizenship or eligible immigration status,
and for provisions concerning assistance to certain mixed families
(families whose members include those with citizenship and eligible
immigration status and those without eligible immigration status) in
lieu of termination of tenancy, see 24 CFR part 5.
Sec. 960.210 Continued occupancy limits.
(a) General. The HA may adopt reasonable income limits for
continued occupancy of its dwelling units. The limits must not be less
than the low income limit determined by HUD, in accordance with 24 CFR
part 5.
(b) Action based on ineligibility. No HA may commence eviction
proceedings, or refuse to renew a lease, based on the income of the
tenant family unless:
(1) It has identified, for possible rental by the family, a decent,
safe, and sanitary unit of suitable size available at a rent not
exceeding the tenant rent as defined and calculated in accordance with
24 CFR part 5; or
(2) It is required to do so by local law.
Subpart C--Applications, Waiting List, Tenant Selection and
Assignment
Sec. 960.301 Applications.
(a) The HA must have a written application before placing any
applicant on the waiting list. The HA must, if requested, provide
assistance to the applicant in completing the application.
(b) The application must provide sufficient information to the HA
for it to make a preliminary determination of the applicant's
eligibility, type and size of dwelling requirement, and rent.
(c) The HA must record the date and time of receipt of all
applications and process them centrally.
(d) Unless the waiting list is closed, the HA must give an
applicant an opportunity to submit a written application, even if
informal discussion suggests that the applicant is not eligible.
Sec. 960.303 Waiting lists.
See 24 CFR 1.4 for requirements concerning selection of tenants for
all of the public housing projects under an HA's jurisdiction from a
community-wide waiting list. The HA may divide its waiting list into
separate categories for general occupancy projects, for mixed
population projects, for projects designated for elderly families, and
for projects designated for disabled families, provided that all
applicants are given an opportunity to be on the waiting list for any
category of project for which they are qualified.
Sec. 960.304 Tenant selection and assignment.
(a) Assignment of applicants and units must be conducted in
accordance with a Tenant Selection and Assignment Plan that meets the
requirements of 24 CFR 1.4(b)(2)(ii) and is approved by HUD.
(b) Unit assignments must be in sequence and must be based on the
type of project, size and type of unit required, applicable Federal and
local preferences, and date and time of application. See 24 CFR
1.4(b)(2) and 24 CFR part 5, subpart D.
(c) The HA may move to the bottom of the waiting list or remove
from the waiting list the name of any applicant who refuses more than
the number of offers of suitable units prescribed in the HA's plan. The
HA may prohibit any applicant whose name was removed in accordance with
such a policy from reapplying for a period of time specified in the
plan. The number of offers allowed under the plan must not exceed
three.
(d) An applicant who is dropped from the waiting list because a
disability interfered with the ability to respond to an HA request can
be reinstated as a reasonable accommodation.
Sec. 960.307 Mixed population projects.
(a) For purposes of this section, a ``mixed population project'' is
a public housing project, or portion of a project, that either was
reserved for elderly families and disabled families at its inception
(and has retained that character), or was approved by HUD for
preference in tenant selection to elderly families and disabled
families.
(b) Elderly families and disabled families must be given a
preference over all other applicants for admission to dwelling units in
a mixed population project.
(c) Preference must be given to elderly families and disabled
families equally in determining priority for admission to mixed
population projects. An HA may not establish a limit on the number of
elderly families or disabled families who may be accepted for occupancy
in a mixed population project.
(d) In offering available units to elderly families and disabled
families in
[[Page 25737]]
mixed population projects, units with accessible features must be
offered first to persons with disabilities who require the
accessibility features of the unit in accordance with the requirements
of 24 CFR 8.27 and 24 CFR 100.202(c)(3).
(e) If Federal preferences are in effect, elderly families and
disabled families who do not qualify for a Federal preference and who
are given preference for admission under paragraph (b) of this section
over non-elderly families and non-disabled families that qualify for a
Federal preference, are not subject to the statutory limitation on
admission of families without a Federal preference over families with
such a Federal preference that may initially receive assistance in any
one-year period.
Subpart D--Exemption From Eligibility Requirements for Police
Officers and Other Security Personnel
Sec. 960.401 Exemption from eligibility requirements.
HUD may exempt officers from the eligibility requirements for
admission to public housing, provided that:
(a) The officers would not be eligible, under any other admission
requirements or procedures, for admission to the public housing
development without such an exemption; and
(b) The exemption is given under a plan, as described in
Sec. 960.402, that has been approved by HUD.
Sec. 960.402 Definitions.
Officer means a professional police officer or other professional
security provider. Police officers and other security personnel are
considered professional if they are employed full time, i.e., not less
than 35 hours per week, by a governmental unit or a private employer
and compensated expressly for providing police or security services. As
used in this subpart, ``Officer'' may refer to the Officer as so
defined or to the Officer and his or her family taken together,
depending on the context.
Plan means the written plan submitted by a housing agency (HA) to
the Department, under which, if approved, the Department will exempt
Officers from the normal eligibility requirements for residence in
public housing and allow Officers, who are otherwise not eligible, to
reside in public housing units. An HA may have only one plan in effect
at any one time, which will govern exemptions under this subpart for
all public housing managed by that HA.
Sec. 960.405 Plan standards and criteria.
(a) Minimum requirements. To be approved, a plan must satisfy the
following requirements:
(1) The plan must identify the number of units under management by
the HA and the number and location of the units the HA intends to use
for officers and the amount of rent to be charged and a basis for
determining that it is reasonable;
(2) The plan must identify the specific benefits to the community
and to the HA that will result from the presence of the officer in each
affected development;
(3) The plan must describe the existing physical and social
conditions in and around each affected development sufficient for HUD
to make an informed assessment of the level of need for increased
security; and
(4) The plan will provide information sufficient for HUD to
determine that granting an exemption will:
(i) Increase security for other public housing residents;
(ii) Result in a limited loss of income to the HA; and
(iii) Not result in a significant reduction of units available for
residence by qualified families.
(b) Certifications by HA. The HA must certify that:
(1) The dwelling units proposed to be allocated to officers are
situated so as to place the officers in close physical proximity to
other residents;
(2) No resident families will have to be transferred to other
dwelling units in order to make available the units proposed to be
allocated to officers;
(3) The dwelling units proposed to be allocated to officers will be
rented under a lease that enforces the provisions of Sec. 960.409; and
(4) The number of dwelling units proposed to be allocated to
officers under the plan does not exceed a reasonable number, as
determined on the basis of total number of units under management by
the HA, in consultation with HUD.
Sec. 960.409 Special rent requirements and other terms and conditions.
The HA must lease units to officers under a lease agreement that is
consistent with the requirements of this section and with part 966 of
this chapter. If there is any inconsistency between the requirements of
part 966 and this section, the provisions of this section shall govern.
(a) Reasonable rent. The lease must provide for a reasonable rent.
(b) Continued employment. The lease must provide that the officer's
right of occupancy is dependent on the continuation of the employment
that qualified the officer for residency in the development under the
plan and provide that the officer will move from the unit within a
reasonably prompt time, to be established in the lease, after
termination of such employment.
Sec. 960.411 Applicability of the annual contributions contract;
effect on the Performance Funding System.
(a) Annual contributions contract. Public housing units occupied by
Officers in accordance with a plan submitted and approved under this
subpart will be subject to the terms and conditions of the annual
contributions contract (ACC) between the HA and HUD. This subpart does
not override any of the terms and conditions of the ACC except insofar
as they are inconsistent with the provisions of this subpart.
(b) Performance funding system. For purposes of the operating
subsidy under the Performance Funding System (PFS) described in part
990, subpart A, of this chapter, dwelling units allocated to Officers
in accordance with this subpart are excluded from the total unit months
available, as defined in Sec. 990.102 of this chapter. Also for
purposes of the operating subsidy under the PFS, the full amount of any
rent paid by Officers in accordance with this subpart is included in
other income, as defined in Sec. 990.102 of this chapter. HAs may
receive operating subsidy for one unit per housing development to
promote economic self-sufficiency services or anti-drug programs,
including housing police officers and security personnel. An HA may
request consideration of such units in its calculation of operating
subsidy eligibility through the appropriate local HUD Office. (See
Sec. 990.108(b) of this chapter.)
PART 966--LEASE AND GRIEVANCE PROCEDURES
2. The authority citation for part 966 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437d note, and 3535(d).
3. In Sec. 966.4, paragraph (l)(2) is revised to read as follows:
Sec. 966.4 Lease requirements.
* * * * *
(l) * * *
(2) Grounds for termination. The PHA shall not terminate or refuse
to renew the lease other than for serious or repeated violation of
material terms of the lease or for other good cause.
(i) General. Failure to make payments due under the lease or to
fulfill the tenant obligations set forth in Sec. 966.4(f)
[[Page 25738]]
would constitute grounds for termination of tenancy.
(ii) Crime. (A) At any time, the PHA may terminate the lease if the
PHA determines that any family member has engaged in drug-trafficking
or violent criminal activity. For purposes of this section, drug-
trafficking means the illegal manufacture, sale, or distribution, or
the possession with intent to manufacture, sell, or distribute, of a
controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)). For purposes of this section, violent
criminal activity means any illegal criminal activity that has as one
of its elements the use, attempted use, or threatened use of physical
force against the person or property of another.
(B) The PHA may terminate the lease if the PHA determines that any
family member, a guest, or another person under the tenant's control,
is engaged in any criminal activity that threatens the health, safety
or right of peaceful enjoyment of the PHA's public housing premises by
other residents or any drug-related criminal activity.
(iii) Illegal drug use and alcohol abuse. (A) The PHA must
establish standards for determining whether to terminate program
assistance if the PHA determines that:
(1) Any family member is illegally using a controlled substance; or
(2) A family member's use of a controlled substance or abuse of
alcohol interferes with the health, safety, or right to peaceful
enjoyment of the premises by other residents.
(B) In determining whether to deny or terminate program assistance
for illegal use or pattern of use of a controlled substance or for
abuse or pattern of abuse of alcohol by a family member, the PHA may
consider whether the person:
(1) Is no longer engaging in the illegal use of a controlled
substance or in abuse of alcohol (as applicable); or
(2) Has successfully completed a supervised drug or alcohol
rehabilitation program (as applicable), has otherwise been
rehabilitated successfully, or is participating in a supervised drug or
alcohol rehabilitation program (as applicable).
(C) The PHA may require a family member who has engaged in the
illegal use of a controlled substance, or in alcohol abuse activity
that interfered with the health, safety, and peaceful enjoyment of the
premises by other residents, to submit evidence of current
participation in, or successful completion of, a supervised drug or
alcohol rehabilitation program (as applicable) as a condition to being
allowed to reside in the unit.
(D) In determining whether to terminate the lease based on drug-
related criminal activity or violent criminal activity, the PHA may act
when the preponderance of evidence indicates that the person has
engaged in such activity, regardless of whether the person has been
arrested or convicted.
* * * * *
Dated: April 9, 1997.
Kevin Emanuel Marchman,
Acting Assistant Secretary for Public and Indian Housing.
[FR Doc. 97-12080 Filed 5-8-97; 8:45 am]
BILLING CODE 4210-33-P
