[Federal Register Volume 59, Number 136 (Monday, July 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16887]
[[Page Unknown]]
[Federal Register: July 18, 1994]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 813, et al.
Section 8 Certificate and Voucher Programs Conforming Rule: Admissions;
Final Rule
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Public and Indian Housing
24 CFR Parts 813, 882, 887, and 982
[Docket No. R-94-1628; FR-3727-F-01]
RIN 2577-AB47
Section 8 Certificate and Voucher Programs Conforming Rule:
Admissions
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule.
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SUMMARY: This rule amends requirements for admission of eligible
families to receive tenant-based Section 8 rental assistance under the
rental certificate program and the rental voucher program. The rule
includes procedures for waiting list and non-waiting list admission,
including federal and local preferences for admission from the Housing
Agency waiting list. The rule makes these changes to implement a
statutory change and to reorganize and clarify the admissions
process.The statutory change implemented by this rule decreases the
number of families that must be admitted on the basis of qualifying for
a federal selection preference and specifically authorizes adoption of
local selection preferences by housing agencies. The rule also
consolidates and clarifies existing policies concerning the admissions
process.
EFFECTIVE DATES: Except for Sec. 982.209(b), this rule is effective on
October 18, 1994. Section 982.209(b) is effective January 18, 1995.
FOR FURTHER INFORMATION CONTACT: Madeline Hastings, Director, Rental
Assistance Division, Room 4204. Telephone numbers (202) 708-2841
(voice); (202) 708-0850 (TDD). (These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The information collection requirements in this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520), and have been
assigned OMB Control Number 2577-0169.
Background
On February 24, 1993, HUD published a comprehensive proposed rule
to combine and conform the rules for tenant-based Section 8 rental
assistance under the rental certificate program and the rental voucher
program. [58 FR 11292]
This final rule only covers unified admission procedures for the
tenant-based program. Admission procedures are contained in Subpart E
of a new tenant-based rule at 24 CFR Part 982. As soon as possible, HUD
will issue a comprehensive final rule covering all aspects of the
tenant-based programs. The final rule may include further revisions of
program admission procedures.
Eligibility
When HA Can Admit Non Very Low-Income Families
The proposed rule listed the categories of non very low-income
families who may be selected for the tenant-based programs. Public
comments state that the list is confusing, administratively cumbersome
and unfair. Comments also claim HUD is improperly restricting admission
of non very low-income families.
Under the law, there are different income limits for admission to
the certificate and voucher programs. In the certificate program, the
law permits assistance for low-income families (income below 80 percent
of area median). However, in the voucher program, the law generally
limits participation to very low-income families (income below 50
percent of area median). Families that are not very low-income can be
admitted to the voucher program only in cases specified in the law--
families who reside in specified types of housing affected by various
HUD programs or activities.
A central goal of this rule is to unify regulatory requirements for
the tenant-based certificate and voucher programs, except for
differences that are required by the law. To this end, the rule largely
sets the same eligibility requirements for the two tenant-based
programs. For both programs, the rule allows admission of non very low-
income families within the statutory categories prescribed by law for
the Section 8 voucher program (such as a family previously assisted in
public housing), and also within the statutory lower income limit for
admission to the Section 8 non-voucher programs. Thus families that
meet the uniform eligibility requirements under this rule are within
the statutory eligibility limits for both the Section 8 voucher and
certificate programs.
For the certificate program only, the rule permits admission of a
low-income family that lives in a property sold by HUD or in a property
sold at foreclosure of a HUD-held mortgage. This is the only difference
between the uniform eligibility requirements for the tenant-based
programs under this rule.
In the certificate and voucher programs, the law establishes the
outer boundaries of statutory eligibility. However, the law does not
assure assistance for any eligible family. Unlike entitlement programs,
in which assistance is provided to any eligible person, the
availability of Section 8 certificate or voucher assistance is
constrained by the amount of funding appropriated by the Congress, and
by the funding available to the HA at which a family applies. Many may
apply, but the HA can only assist the number of families that can be
supported with available funding.
In this context, the rule defines uniform eligibility criteria for
admission of non very low-income families. The law does not require HUD
to set eligibility limits at the boundaries of statutory program
eligibility. Rather, the law specifically recognizes HUD's authority to
limit admission of non very low-income families. [See 42 U.S.C. 1437n]
HUD agrees with comments which note that the list of specific
eligibility categories (for non very low-income admissions) is clumsy
and confusing. However, since the voucher law does not permit
assistance for other non very low-income families, use of the statutory
voucher categories is the only way to define a uniform standard for
admission of low-income families other than very low-income families.
HUD may not totally prohibit admission of low-income families other
than very low income families. [42 U.S.C. 1437n(c)] In addition, the
eligibility definition in this rule focuses most available assistance
on very low-income families, while permitting assistance for other low-
income families affected by specific HUD programs and activities.
Under this rule, a Housing Agency (HA) can only admit non very low-
income families in the special categories defined in the rule. Before
this rule, low-income families were, in theory, broadly eligible for
admission to the certificate program. However, admission of such
families was sharply restricted by HUD.
By law, only 15 percent (5 percent before a 1990 amendment) of
Section 8 and public housing units added nationally since federal
fiscal year 1982 can be leased to non very low-income families. [U.S.H.
Act, Sec. 16, 42 U.S.C. 1437n(b)(1)] The restrictions on leasing
Section 8 units to non very low-income families are stated in a cross-
cutting regulation for the various Section 8 programs. [24 CFR
Sec. 813.104 and Sec. 813.105] For the certificate program, the limit
is applied by regulation to families admitted to the certificate
program since July 1984. [Sec. 813.105(c)] In practice, almost all
Section 8 tenant-based units are covered by the regulatory restriction.
In general, the HA may not admit a non very low-income (but statutorily
eligible) family unless HUD has given the HA approval to grant an
``exception''.
In implementing the limit on non very low-income admissions,
exceptions were routinely permitted by HUD for the types of non very
low-income admissions allowed under this rule. In practice, non very
low-income occupancies have represented less than five percent of the
Section 8 and public housing programs as a whole, or of the certificate
program or voucher program separately. Even in the categories for which
exceptions have been granted by HUD, most families are very low-income
at admission to the certificate and voucher programs.
For tenant-based assistance, this rule now lists the categories of
non very low-income families that may be admitted to the program. For
this reason, HUD has decided to delete the separate regulatory
limitations (in Part 813) on non very low-income occupancy in the
certificate programs, and to delete also the accompanying requirement
to secure grant of a HUD ``exception'' permitting admission of non very
low-income families. In essence, the exception cases are now built into
the definition of income eligibility in the program rule. Since the
number of non very low-income certificate and voucher admissions in
these special categories is limited (in relation to the aggregate
number of program admissions), experience indicates such admissions
will continue to be well below 15 percent of certificate and voucher
admissions, and will not jeopardize compliance with the global 15
percent limitation for the Section 8 and public housing programs as a
whole. Deletion of the certificate and voucher procedures for
restricting and tracking non very low-income occupancy will simplify
program administration by HAs and HUD, but will not substantially
affect actual levels of occupancy in these programs.
Applicable Income Limit
HUD establishes sets of income limits for each area of the country.
The HA determines whether a family is income-eligible by comparing the
family's annual income (gross income) and the HUD-established very low-
income limit or low-income limit for the appropriate income limit area.
The final rule codifies how the HA determines the applicable income
limit area for a family admitted to the tenant-based assistance
programs.
In the public housing program, and in the project-based Section 8
assistance programs, family income eligibility at admission to the
program is governed by the income limit for the area where the project
is located, and the family is initially assisted. In the tenant-based
programs, at initial issuance of a certificate or voucher to a family,
the HA does not know where the family will initially rent with
assistance under the program.
At admission, a family may generally choose to rent a unit anywhere
in the HA jurisdiction, and (if qualified for initial portability) may
elect to rent a unit outside the HA jurisdiction under portability
procedures. For some HAs, such as an HA with Statewide jurisdiction,
the HA jurisdiction may include more than one income limit area. If the
family moves to a different HA jurisdiction under portability, the
receiving HA may be in a different income limit area (or areas) than
the HA that admitted the family. The HA needs to know what income limit
applies, both when the HA initially issues the family a certificate or
voucher, and also when the HA initially executes a HAP contract for the
family.
The rule provides that in determining the applicable income limit
for issuance of a certificate or voucher upon selection for the
program, the HA uses the highest income limit (for the family unit
size) of all the income limit areas in the HA jurisdiction. However,
the family may only use the certificate or voucher to rent a unit in an
area where the family is income eligible at admission to the program
(that is, when the HA executes a HAP contract for the unit selected by
the family). The applicable income limit for admission to the program
is the income limit for the area where the family is initially
assisted. [Sec. 982.201(b)(2)] For admission as a very low-income
family, the family income must be within the very low-income limit for
the area. For admission as a low-income family (which meets criteria
for admission of a non very low-income family), the family income must
be within the low-income limit for the area.
Continuously Assisted Family
The rule provides that the HA may assist a low-income family that
is continuously assisted under the 1937 Housing Act.
[Sec. 982.201(b)(1)(ii)(A)] The rule lists the 1937 Housing Act
programs. [``1937 Housing Act program'' defined at Sec. 982.3] The 1937
Act programs include the public housing program and all of the Section
8 project and tenant-based programs (as well as the old Section 23
leased housing and Section 23 housing assistance payments programs).
Public comments express concern about the process for determining
if families are ``continuously assisted'' under the 1937 Housing Act.
Families do not know if they have been continuously assisted under a
1937 Act program. The HA would have to conduct investigations to
determine if families qualify as continuously assisted. Comments ask
for guidance on how to get this information.
If a family is currently assisted in a 1937 Act program of the same
HA at which it is applying for assistance under the certificate or
voucher program, the HA should usually have no difficulty getting this
information. If the family was receiving assistance under one of the
1937 Housing Act programs from another HA or a private Section 8 owner,
the family must generally provide the information to the HA. The HA may
verify the information by inquiry to the HA or owner.
The rule provides that an applicant is considered to be
continuously assisted under the 1937 Housing Act if the family is
already receiving assistance under any 1937 Housing Act program when
the family is admitted to the certificate or voucher program.
[Sec. 982.201(d)(1)] The Department recognizes that in a variety of
circumstances there may be a brief interruption in the transition from
another 1937 Act program to assistance under the 1937 Act tenant-based
programs. For example, tenant-based assistance may be provided for
continued assistance to residents of a Section 8 project after the HAP
contract expires or is terminated for owner breach, and there may be a
short delay in arranging for continued assistance for project-
residents.
This rule allows the HA flexibility to deal with brief breaks that
do not interrupt the essential continuity of 1937 Act assistance to the
family. The rule provides, as proposed, that an HA must establish
policies concerning whether and to what extent a brief interruption
between assistance under a 1937 Act program and admission to the HA's
tenant-based program will be considered to break continuity of
assistance. [Sec. 982.201(d)(2)] Comments approve this approach.
Limit on Assistance for Aliens
Comments suggest that proof of citizenship should be an eligibility
requirement, and that foreign students should be ineligible for the
program.
Section 214 of the Housing and Community Development Act of 1980
(42 U.S.C. 1436a) prohibits Section 8 assistance for persons other than
United States citizens or eligible aliens. Section 214 will be
implemented in a separate rule.
Definition of a Family
In the Section 8 and public housing programs, the statutory term
``family'' refers to a group or single person that can be assisted
under the program. A 1992 law redefined the term ``family''. [42 U.S.C.
1437a(b)(3), as amended by the Housing and Community Development Act of
1992, section 621; 106 Stat. 3812] The February 24, 1993 proposed rule
contained a new ``family'' definition based on the 1992 law. HUD did
not propose to amend the general Section 8 definition of ``family'' and
other related terms in 24 CFR 812.2. The statutory family definition
was amended again, on April 11, 1994. [42 U.S.C. 1437a(b)(3)(B),
amended by Section 301 of Public Law 103-233, 108 Stat. 342, 369]
Public comments raise important questions about the new definition
of the term ``family'' under the 1992 law and proposed rule. The
Section 8 and public housing programs are covered by the same statutory
``family'' definition in the U.S. Housing Act of 1937. Since there
should be substantially uniform regulatory treatment of family
eligibility in these programs, the Department is deferring
implementation of any substantive changes because of the family
redefinition under the 1992 law.
The 1992 law provided that the term ``families'' ``means families
with children''. [106 Stat. 3812] Many public comments echo HUD's
concern in the proposed rule, that this new statutory definition might
not permit admission of a multi-person family without children, such as
a married couple without children or two adults. In 1994, the law was
amended to provide that ``the term `families' includes families with
children''.
This final rule does not give a new family definition. However, the
rule restates how the family concept is used in determining program
eligibility. The rule states that a ``family'' may receive assistance
under the certificate or voucher programs. [Sec. 982.201(a)] The
``family'' may be either a single person or a group of persons.
[Sec. 982.201(c)(1)] In accordance with the 1994 amendment, the rule is
revised to provide that the group of persons constituting a family
``includes a family with a child or children''. [Sec. 982.201(c)(2)]
This provision allows admission of a family with children, but does not
preclude the admission of a multi-person family without children.
Over time, successive amendments of the U.S.H. Act ``family''
definition have widened the qualification of single individuals for
assistance under the program. Originally, the term covered only aged,
displaced or disabled single persons. Currently, any single person may
qualify as a ``family''. Although the rule does not include a new
family definition, the rule specifies that a single person family may
be an elderly person, a disabled person, a displaced person or ``any
other single person''. [Sec. 982.201(c)(4)(iv)]
Through successive statutory amendments, the 1937 Housing Act
specified when a single person qualifies as a family, but did not
contain a comprehensive definition stating when a group of persons
(other than an elderly family or disabled family) qualifies as a
family. HUD does not impose a national definition of a multi-person
family, but has substantially left this term to local definition by
individual HAs for application to their programs.
The rule confirms that ``family'' includes an elderly or disabled
person or persons residing with a live-in aide who provides necessary
supportive services. In accordance with historical practice and
understanding, the rule provides that the HA determines if any other
group of persons qualifies as a family. [Sec. 982.201(c)(3)]
A 1993 rule removed restrictions on assistance for singles who are
not elderly, disabled or displaced. [58 FR 39658, July 26, 1993] HAs
now have broad authority to house other single persons, but must house
the elderly, disabled or displaced ahead of other singles.
Near-elderly
In accordance with the 1992 law, the family definition in the
proposed rule contains several provisions on assistance to a ``near-
elderly'' person--defined as a person from 50 to 61 years old. The
proposed rule provides that a statutory ``family'' (the entity eligible
for program assistance) includes a family whose head or spouse is near-
elderly, and also provides that a single person family includes a near-
elderly person. Comments approve assistance for the near-elderly. The
comments generally appear to assume that qualification as near-elderly
makes a single person eligible for assistance, or confers priority over
younger single persons. Such comment indicates confusion as to the
impact of the near-elderly designation on program eligibility. Since
any single person may now qualify as a statutory family, the near-
elderly designation is not necessary to confer single person program
eligibility. Also, near elderly singles do not have a statutory
priority for admission.
This rule does not include the proposed near-elderly definition and
provisions on family eligibility of a near-elderly person. Under the
1992 law, the near-elderly characterization chiefly affects use of
Section 8 project-based assistance in units or projects designated for
the elderly. In the tenant-based programs, there are no projects or
units designated for Section 8 elderly occupancy. Each family chooses a
unit in the private market.
Temporary Absence of Foster Child
Comments asked HUD to clarify a rule which states that the
temporary absence of a child from the home due to placement in foster
care may not be considered in determining what constitutes a family. A
1990 law provides that: The temporary absence of a child from the home
due to placement in foster child care shall not be considered in
considering family composition and family size. [1990 NAHA, section
574, amending 42 U.S.C. 1437a(b)(3); 104 Stat. 4238]
In determining family composition, the temporarily absent child is
considered to be part of the assisted household. For example, a single
woman with two children who are currently and temporarily living in
foster care homes, is considered as a family of three people, one adult
and two children, instead of a single person family. The statutory
provision is intended to promote family re-unification by permitting
the family to rent a subsidized unit that will be big enough for the
whole family when the absent child returns from foster care. To clarify
this concept, the rule provides that: A child who is temporarily away
from the home because of placement in foster care is considered a
member of the family. [Sec. 982.201(c)(5)]
The statutory and regulatory provisions only pertain to the foster
child's ``temporary'' absence from the home, but are not intended to
artificially enlarge the space available for other family members.
Remaining Family Member
Comments ask HUD to clarify a proposed provision stating that the
``remaining'' members of an assisted family qualify as a ``family''.
Since the beginning of the Section 8 program, the law has provided that
a ``family'' includes a ``remaining'' member of the tenant family.
[Definition now at 42 U.S.C. 1437a(b)(3)(A)] Under the existing
regulatory definition of a ``family'', the term ``family'' includes the
``remaining member of a tenant family'' (at Sec. 812.2, not amended by
this rule).
If composition of an assisted family changes by death or departure
of family members after initial admission to the program, the remaining
members or individual member of the assisted family are a statutory
``family''. The definition of a ``family'' as including a ``remaining''
family member merely confirms that the HA may continue assistance on
behalf of a remaining family member after departure of other members of
the original assisted family. The ``remaining'' family member concept
does not affect original eligibility or admission to the program--
whether of a single individual or of a multi-person family.
Since this rule only covers HA admission processes (Part 982,
Subpart E), the rule deletes the proposed provision on remaining family
members. The final stage of this rulemaking will clarify that remaining
family members constitute a family.
Disability
The family definition in the 1992 law includes a new definition of
``person with disabilities'' (essentially combining defining elements
of three separate disability definitions under prior law). [106 Stat.
3812, amending 42 U.S.C. 1437a(b)(3)(E)] The law provides that ``person
with disabilities'' may not exclude persons with the disease of
acquired immunodeficiency syndrome (AIDS), or conditions resulting from
the AIDS syndrome. The proposed rule would incorporate the new AIDS-
related elements in the definition of ``person with disabilities''.
Comments ask HUD to clarify whether the disability definition
includes a person who is HIV positive, but who does not exhibit
symptoms or conditions associated with AIDS. Comments ask why persons
with terminal illnesses other than AIDS are not included in the
definition, and suggest that HUD expand the definition of the term
disabled person to include persons in recovery programs for substance
abuse or other conditions.
As indicated above, substantive changes in the ``family''
definition under the 1992 law will be implemented by HUD in a separate
rulemaking for the whole universe of covered Section 8 and public
housing programs. This rule does not include special provisions on
eligibility of individuals with AIDS and related conditions. To qualify
for assistance as a disabled person, a single person must meet the
general disability standards carried forward from the prior law (and
consolidated under the term ``disabled person''). In addition, since
the law and rule now permit assistance to any single person (not only
the aged, disabled or displaced), disabled or non-disabled single
persons are broadly eligible for Section 8 assistance.
The definition of ``disabled person'' includes a person with a
disability as defined in section 223 of the Social Security Act.
[Definition of ``disabled person'' in Sec. 982.3; 42 U.S.C.
1437a(b)(3)(E)(i)] Comments state that the HUD rule should use the
disabled definition in the Americans with Disabilities Act instead of
the definition of disabled under section 223 of the Social Security
Act. Since the disability definition in the 1937 Housing Act explicitly
incorporates the disability definition in the Social Security Act, HUD
has not followed this recommendation.
Live-in Aide
The rule defines the term ``live-in aide''. [Sec. 982.3] A live-in
aide resides with the assisted family to care for a family member who
is disabled or elderly. Section 8 family income does not include income
of the live-in aide (either for determination of family eligibility at
admission to the program, or for determination of the family share at
admission and reexamination). If the Section 8 participant leaves the
unit, the live-in aide is not considered a ``remaining'' family member
or program participant, and does not receive any assistance for
continued occupancy of the unit.
The definition of live-in aide in this rule substantially tracks
the definition in other cross-cutting Section 8 rules that apply to the
certificate and voucher programs. [24 CFR Parts 812 and 813] The 1992
law also authorizes the use of a live-in aide for a near-elderly
person. This change will be implemented in the future rulemaking for
programs affected by the 1992 family amendments.
The final rule deletes a proposed change of the live-in aide
definition (not included in the parallel language of other Section 8
rules) to provide that a live-in aide may not be related by blood,
marriage or operation of law to the persons receiving Section 8
assistance for occupancy of the unit. Comments objected to this
proposal, stating that HUD should encourage a family relative to act as
a live-in aide.
Single Persons: Preference for Admission of Elderly or Disabled
By law, a single person who is elderly (over 62), disabled or
displaced must be admitted before other single person families. [42
U.S.C. 1437a(b)(3)(A)] This singles preference is implemented in the
existing HUD rule on admission of single persons in the Section 8
programs. [Sec. 812.3, as amended at 58 Federal Register 39658-59, 7/
26/93]
In HUD's existing rules, the statutory preference for a disabled or
elderly single person is broadened to provide a preference for an
``elderly family'' or displaced person over other single persons.
[Sec. 812.3(e)] An ``elderly family'' includes both a single person
family consisting of a person who is disabled or over 62, and a multi-
person family whose head or spouse is disabled or over 62. [Definition
of ``elderly family'' in Sec. 812.2]
The proposed rule merely states the bare statutory preference for
an elderly, disabled or displaced single person over other single
persons, without stating the preference for an ``elderly'' multi-person
family. [Proposed Sec. 982.201(a)(2)(ii)] In this rule, the statement
of the preference has been conformed to the existing rule that gives
preference to any family with an elderly or disabled head or spouse,
not limited to a preference for elderly or disabled single person
families.
The rule provides that: In selecting applicants, the HA must give
preference to:
(1) A family (with or without federal preference):
(i) Whose single member is a displaced person or,
(ii) Whose head or spouse or single member is an elderly person or
a disabled person, over
(2) A single person (with or without federal preference) who is not
elderly, disabled or displaced. [Sec. 982.207(d)]
Comments note that the proposed rule does not explain how the
statutory singles preference (for single persons who are elderly,
disabled or displaced) relates to the statutory federal preferences
(for single or multi-person families that are displaced, rent-burdened
or live in substandard housing). Comments recommend that the rule
should specify that the preference for singles applies between
applicants with the same federal preference status (i.e., applicants
with or without a federal preference). As HUD understands this
proposal, the singles preference would require the admission of a
federal preference single who is elderly, disabled or displaced before
a federal preference single who is not elderly, disabled or displaced.
The statutes do not state the relation between the two types of
statutory preference, nor prescribe which type of preference takes
precedence. HUD has decided to provide that the federal statutory
preference for elderly, disabled or displaced singles will take
precedence over the so-called ``federal preferences''. Under this rule,
the singles preference is not limited--as proposed by the comment--to
applicants with the same federal preference status. The rule is revised
to provide that the singles preference applies to a family ``with or
without a federal preference'' over a single person with or without a
federal preference. The rule requires admission of a single individual
who is elderly, disabled or displaced, but does not qualify for federal
preference, before a single individual who qualifies for federal
preference, but is not elderly, disabled or displaced.
[Sec. 982.207(d)]
Comments state that HAs should not be required to accept
applications from non-elderly applicants, when these applicants will
never be reached on the waiting list because of the preference for
elderly or disabled persons.
The rule does not require the admission of ``other'' single
persons, who are not entitled to the statutory singles preference. The
rule also permits the HA to adopt a policy on opening or closing the
waiting list to applications from such other singles. The HA may adopt
local policy on who may apply for assistance when the waiting list is
open. [Sec. 982.206(a)(3) and Sec. 982.206(b)(1)] If singles with
statutory preference will absorb available program openings, the HA may
elect to stop accepting new applications from other single persons.
Verifying Eligibility
The proposed rule requires that an HA must verify family
eligibility during the 90 day period before the family initially
receives assistance under the program. Comments note that HAs will have
difficulty in satisfying this requirement. The Department is also asked
to clarify whether ``initially receiving assistance'' means the date a
certificate or voucher is issued or the effective date of the HAP
contract.
After considering comments, HUD has decided to require that the HA
obtain information verifying family eligibility no more than 60 days
before the HA initially issues a certificate or voucher to an applicant
family. [Sec. 982.201(e)] This timing of the verification process will
eliminate scheduling problems that might be caused if the time for
eligibility verification is linked to the commencement of assistance
(effective date of the HAP contract).
Comments state that the requirement to verify eligibility 90 days
before commencement of assistance is inconsistent with handbook
guidance providing that verifications are valid for 120 days from
receipt by the HA. The 120 day validity period is and will remain
applicable for annual reexaminations and interim redetermination of
family income and composition after admission to the program. The
program handbook will give additional guidance on how to administer the
initial income eligibility verification deadline in this rule.
The proposed rule provides that the HA must make a preliminary
eligibility determination before placing a family's name on the waiting
list. Comments criticize HUD for trying to micro-manage the admission
process. An HA should have discretion whether to make an eligibility
determination before a family is added to the waiting list. Family
circumstances change. A family that is ineligible at the time of
application may become eligible before its name is reached on the
waiting list. Comments also ask HUD to clarify that the HA is not
required to verify family eligibility before adding a family's name to
the waiting list.
An HA must determine and verify eligibility before a family is
admitted. However, HUD agrees that HAs need flexibility to design an
admission process and timing that fits the need of the local program.
For most HAs, there are many qualified applicants and a long wait for
entrance to the program. Families may move away or lose interest.
Eligibility information must be current when the family is finally
selected for admission to a program. The HA needs to balance
administrative cost and problems against the need for an adequate pool
of families for orderly admission to available program openings.
Various program requirements apply to the HA ``waiting list'',
including the federal preference scheme, and provisions governing the
relation of the Section 8 waiting list to waiting lists for other
assisted housing programs. The proposed rule provides that the HA must
make a preliminary eligibility determination before a family is placed
on the Section 8 waiting list. This provision was intended to specify
that the universe to which ``waiting list'' requirements apply is the
universe of families for which the HA has made a preliminary
determination of eligibility (which need not be verified at that time).
The proposed requirement was not intended to accelerate the HA's
preliminary eligibility determination, or to require the HA to verify
family eligibility before adding the family to the waiting list.
In the rule, HUD does not require a preliminary eligibility
determination before the HA puts the family on the waiting list.
Selecting Families
Family Size--Effect on Selection
In the tenant-based programs, HAs currently apportion available
program funding resources by unit size (1 bedroom, 2 bedroom * * *).
The HA selects an applicant for the unit size opening for which the
family qualifies under the HA occupancy standards. To match available
program resources for each bedroom size with families who qualify for a
particular bedroom size, waiting lists are organized by bedroom size.
In the certificate program, an HA is currently required to use
program resources in accordance with a HUD approved unit size
distribution. The target unit distribution for the program is stated in
the consolidated ACC for the program. Generally, HUD must approve
substantial deviation from the distribution allowed under the ACC. In
the voucher program, the HA has discretion to determine the bedroom
distribution of the program units supported with available program
resources.
In both programs, families are selected by bedroom size for
available program openings for the appropriate bedroom sizes. In this
respect, the current selection procedure for the tenant-based programs
is the same as the selection procedure by which HAs and owners fill
vacant units in project-based assisted housing programs. For example,
when there is a vacant two bedroom unit in an assisted project, the HA
or owner selects a family that needs a two bedroom unit. In the
project-based programs, selection is inherently constrained by the
existing configuration of the subsidized unit, and the need to assure
an appropriate match between the size of the project unit and the
housing needs of the assisted family.
In the tenant-based programs, however, there are no project units.
The family chooses among units available for rent in the assisted
housing market. Once admitted to the tenant-based program, a family
that qualifies for any unit size can search for a suitable sized unit
in the local rental market. The HA is limited by the total program
funds available under the consolidated ACC. However, there is no
inherent need to match the unit size needs of the family with any
particular assisted unit, or with program funds apportioned to support
rental of a particular size unit.
In the tenant-based programs, the unit size for which the family
qualifies determines the maximum subsidy for the family. For example,
in the certificate program a four bedroom family must lease a unit that
rents under the four bedroom fair market rent.
Under the existing program procedures, the distribution of
available program resources by unit size may result in different
waiting periods for the different unit sizes. For example, at a
particular HA the wait for a four bedroom certificate may be three
years, while the wait for a two bedroom certificate is only one year.
In general, the length of the time a family has to wait for assistance
is determined by the amount of funding allocated by the HA for a given
unit size, and the number of waiting list families who qualify for that
unit size. In this system, federal and other locally determined
preferences determine the order of admission among waiting list
families who qualify for a given unit size.
In this rulemaking, comments recommend that families should not be
selected by unit size. Families should be chosen from the top of the
waiting list without regard to unit size. HUD should not allocate
funding by unit size.
After careful consideration, HUD has decided to prohibit HA
selection of families for tenant-based assistance on the basis of the
unit size needed by the family. HAs are no longer permitted to select
families to meet a pre-determined program unit size distribution.
Instead, families must be selected by the HA without regard to family
size, or to the unit size for which a family qualifies under the HA
occupancy policy. When selected, a family receives the appropriate
subsidy for the family size. The HA selects families of any size in
order from the waiting list, up to the limit of available funding. The
program unit size distribution is no longer the basis for selection,
but the result of selection.
To accomplish this important change in program selection
procedures, the rule provides that ``the order of admission from the
waiting list may not be based on family size, or on the family unit
size for which the family qualifies under the HA occupancy policy.''
[Sec. 982.204(d)(1)]
At the time when a family comes to the top of the waiting list, the
HA may or may not immediately have enough funds to support the amount
of subsidy required for the family. The new rule provides that if the
HA does not have sufficient funds to subsidize the family unit size of
the family at the top of the waiting list, the HA may not skip the top
waiting list family in order to admit an applicant family with a
smaller family unit size (that can be immediately supported with
available funding). [Sec. 982.204(d)(2)]
In eliminating selection by unit size, the rule also eliminates HA
administrative problems in managing available assistance resources to
meet a pre-determined unit distribution. Moreover, the rule has also
eliminated the need and authority for the HA to establish priorities
for families requiring different size units.
At any given funding level, the HA can assist more families with a
smaller subsidy, and fewer families with a larger subsidy. This
proposition is equally true of the old system and of the system
established under this rule. However, under the prior system, the
choice of the pre-determined program unit distribution is also a choice
of how many families will be assisted in the program. Under the new
rule, the number of assisted families is the number of families
supported by the available funding.
HUD has developed a new form of consolidated annual contributions
contract (ACC) for the certificate and voucher programs. The unified
contract covers both tenant-based programs administered by an HA, and
eliminates the HA's obligation to meet a pre-determined program unit
size mix in administration of the certificate program under the old
certificate program ACC form. HUD will also eliminate the current
certificate handbook provision requiring HUD approval of unit size
redistributions for more than 12 units.
Prohibited Admission Criteria
In deciding whether to admit a family, the rule does not permit the
HA to consider certain types of ``family characteristics'' listed in
the rule. [Sec. 982.202(b)(4)]
Discrimination Against Family With Children
The proposed rule provides that HA selection of families may not be
based on ``whether the family includes children (family status)''.
Comments state that presence or absence of children may be key to
determining if a family is eligible for assistance. Contrary to the
comment, program ``eligibility'' is not based on whether there are
children in the family.
Comments note that waiting lists are organized by unit size, and
that the unit size for which a family qualifies is determined by the
number and relationship of family members. As discussed above, this
rule eliminates waiting list selection based on the size of the unit
for which a family qualifies under the HA occupancy policy.
[Sec. 982.204(d)]
In response to comments, the rule is revised to clarify, as
originally intended, that the HA is prohibited from using selection
criteria which result in ``discrimination because a family includes
children (familial status discrimination)''. [Sec. 982.202(b)(4)(i)(C)]
Employment or Education
The proposed rule would have prohibited the HA from basing
selection of participants on the ``employment history or education'' of
family members.
The final rule removes the proposed prohibition against selection
based on employment history of family members. In addition, the rule
now specifically permits the HA to give a preference among Federal
preference holders for ``working families''. [Sec. 982.210(b)(3)(iv)]
For admissions not subject to Federal preference, the HA may also give
preference (``local preference'') to working families.
In affording a preference for ``working families,'' the HA is
subject to the statutory and regulatory prohibitions against
discrimination because of age or disability. To provide protection
against such discrimination, the rule provides that an applicant family
must be given the benefit of a working family preference if the head
and spouse, or sole member, are age 62 or older or are receiving social
security disability, supplemental security income disability benefits,
or any other payments based on an individual's inability to work.
Regulations for the tenant-based programs do not allow an HA to
adopt a preference for admission of higher income waiting list families
over families of lower income. [Sec. 982.202(b)(4)(ii)] For tenant-
based programs, this restriction is Departmental policy, but is not
required by statute. In accordance with this policy, the rule provides
that when an HA elects to adopt a ranking preference for Federal
preference-qualified ``working families'', the HA admission preference
``may not give greater preference to an applicant based on the amount
of employment income.'' [Sec. 982.210(b)(3)(iv)]
The final rule does not include the proposed prohibition of
selection based on ``education'' of family members. An HA has
discretion whether or not to adopt an admission policy with a
preference for this purpose. For selection among federal preference
holders, the rule explicitly provides that an HA admission policy may
give ranking preference for graduates of, or active participants in
educational and training programs that are designed to prepare
individuals for the job market. [Sec. 982.210(b)(4)] (However, the law
and regulation prohibit a special preference for applicant families
that agree to participate in the HA's family self-sufficiency program.)
Suitability for Tenancy
The rule restates the old rule requirement that the owner, not the
HA, determines whether a family is suitable for tenancy. Admission to
the program may not be based on a family's suitability for tenancy.
[Sec. 982.202(b)(1)] Comments state that the HA determines suitability
for tenancy when the HA denies assistance because of drug or violent
crime by family members. Since 1990, program rules allow the HA to deny
assistance if family members engage in drug crimes and crimes of
violence. The rule has been revised to confirm that the HA may deny
assistance to an applicant (under existing provisions of the program
rule) because of drug-related criminal activity or violent criminal
activity by family members. [Sec. 982.202(b)(1)]
Special Admission--Non Waiting List
Sometimes HUD gives an HA program funding for families living in
specified units, for example, funding for families displaced because of
demolition or disposition of a public housing project. The final rule
provides that: ``If HUD awards an HA program funding that is targeted
for families living in specified units:
(1) The HA must use the assistance for the families living in these
units.
(2) The HA may admit a family that is not on the HA waiting list,
or without considering the family's waiting list position. The HA must
maintain records showing that the family was admitted with HUD-targeted
assistance.'' [Sec. 982.203(a)]
The rule also lists examples of types of cases in which HUD may
give the HA program funding for a family living in a specified unit.
[Sec. 982.203(b)] In general, these are cases where HUD provides
certificate or voucher funding for continued assistance to low income
residents of projects in various HUD programs. The funding is granted
to an HA by HUD to provide assistance for families who would be
displaced from a project by the termination of assistance or some other
event. The HA must use the funding for that purpose. The HA is not free
to ``select'' other families.
In the proposed rule, a non-waiting list admission is called a
``special family selection''. In the final rule, HUD now uses the term
``special admission'' to more accurately reflect the nature of these
cases--which do not involve an authentic HA selection between eligible
applicants. In the rule a ``special admission'' is defined as:
``Admission of an applicant that is not on the HA waiting list, or
without considering the applicant's waiting list position.''
[Sec. 982.3]
The proposed rule would have allowed special admission of: (1)
families forced to vacate housing because of rehabilitation under the
former rental rehabilitation grant program; (2) families living in
Section 8 Moderate Rehabilitation or Project-based Certificate Projects
in units that are too big or too small; (3) families living in such
projects when an assistance contract expires; (4) when HUD gives the HA
funding for settlement of litigation. Under the terms of the final
rule, special admission is limited to cases when HUD provides the HA
funding for families living in specified units.
Special Admission: Overcrowded or Overhoused Family in Federally-
Assisted Project
Under the proposed rule, the HA would be permitted to make a non-
waiting list admission of a family that lives in a project-based
assisted unit that is too large or too small for the family (if there
is no vacant unit of appropriate size in the project or program). This
proposed provision would have applied to families living in project-
based units assisted under certain HA-administered programs: a public
housing unit, a moderate rehabilitation unit, or a project-based
certificate unit.
Comments recommend that HUD should allow non-waiting list admission
of a family living in an inappropriate-sized unit assisted under the
Section 8 new construction or substantial rehabilitation programs.
Comments also ask HUD to clarify that an HA has the option whether to
use the authority for non-waiting list admission of families in units
that are too big or too small.
HUD has decided to eliminate altogether the proposed authority for
special admission of families who occupy assisted units that are not
suitable for the actual family size. Instead, the HA has latitude to
grant preference for such families in the context of the HA's general
scheme for federal preference and non-federal preference admissions, or
to open the waiting list for such families. In administering the limit
on non-federal preference admissions, the HA may choose to grant a
local preference for these families.
Special Admission: Proposal for Expansion
Comments ask HUD to permit additional categories of non-waiting
list admission. Comments suggest that special admission should be
allowed:
--For persons who are terminally ill.
--For moderate rehabilitation and project-based certificate program
families whose health, welfare or safety is threatened, or families who
have provided drug activity testimony.
--For families that need to move closer to medical or social services.
HUD has not adopted the recommendation to expand the list of non-
waiting list categories (special admission). Each of the situations
noted in the public comments may be a legitimate basis for preferential
admission. Within the scheme of federal preference and non-federal
preference admissions, the HA can employ admission techniques that
expedite assistance for waiting list families with special and urgent
needs described in the HA administrative plan. The HA may, for example,
open a closed waiting list to such families. The HA may adopt
``ranking'' preferences for selection among federal preference holders,
or ``local'' preferences for a local preference admission. Use of the
HA local preference quota is the appropriate vehicle for rationing
available local assistance resources among eligible families who do not
qualify for federal preference. Non-waiting list treatment does not
solve or avoid the burden of local choice in allocation of program
resources.
Special Admission: Funding for Specific Families; Terminology
The rule provides that if HUD awards the HA funding that is
targeted for families living in specified units, the HA must use the
funding for the designated purpose. [Sec. 982.203(a)]
Comments suggest that the limit on use of targeted funding should
only restrict the HA's initial use of the funding. This recommendation
is not adopted. The HA must use targeted funding in accordance with the
conditions imposed when the funds are awarded to and accepted by an HA.
Sometimes HUD funding may be earmarked for specific families, even
after turnover. In most cases, special admission funding is only
restricted on initial use for a particular family. On turnover, such
funding becomes available for general use in the HA tenant-based
program. HUD determines how long the HA is bound by the requirement to
use special funding for the purpose awarded. If HUD does not require
continued use of the funding for a special purpose, the funding is
released from special use requirements.
Waiting List
Status of Applicant
The rule provides that an applicant does not have any right or
entitlement to be listed on the waiting list, to any particular
position on the waiting list, or to admission to the programs. Further,
the rule states that this provision does not affect or prejudice any
applicant right, independent of the certificate and voucher
regulations, to bring a judicial action challenging an HA violation of
a constitutional or statutory requirement. [Sec. 982.202(c)]
Comments ask HUD to delete this provision, asserting that qualified
applicants have a right to be listed on and selected from a waiting
list if funding is available. Other comments expressed concern that
this rule could be construed to mean that an HA may be sued if HUD
fails to take action to implement a statutory provision.
The rule language at issue substantially restates provisions of the
current rule. [See 49 FR 12215, 12224, March 29, 1984] The language
makes clear that the rule is not intended to create any right or
entitlement of individual applicants to apply for or participate in the
programs.
Metropolitan Area Admission Procedures
Comments recommend that HUD require the establishment of a
metropolitan-wide waiting list and nonprofit clearinghouse to take and
process tenant applications for all subsidized housing programs in a
metropolitan area. Comments state that this type of process is needed
to ensure equitable treatment of applicants, and to maximize fair
housing opportunities.
The proposal to restructure metropolitan area admission procedures
would affect operation of all HUD public and assisted housing programs.
In this rulemaking, HUD will not require adoption of metropolitan-wide
waiting lists for all subsidized programs, or the use of non-profit
clearinghouses for processing applications.
HUD plans to develop and implement a metropolitanwide strategy for
the delivery of HUD-assisted housing programs. Initially HUD expects to
develop a model for implementation of a pilot program in up to three
metropolitan areas.
Admission to Different Subsidized Housing Programs
This rule gives a unified statement of provisions on the
relationship between admission to the Section 8 tenant-based programs,
and provisions on admission to other subsidized housing programs. These
provisions cover:
--The relation between the Section 8 tenant-based certificate and
voucher programs. [Sec. 982.205(a)]
--The relation between the Section 8 tenant-based programs and other
assisted housing programs. [Sec. 982.205 (b) and (c)]
Single Waiting List for Tenant-Based Programs
The rule provides that an HA which uses residency preferences for a
county or municipality in the HA jurisdiction may use a separate
waiting list for the county or municipality. [Sec. 982.205(a)(1)]
However, an HA must use the same waiting list for admission to its
tenant-based certificate and voucher programs. [Sec. 982.205(a)(2)] The
HA may not have separate waiting lists for its certificate and voucher
programs.
Refusing Tenant-Based Assistance
An applicant may decline an offer of admission to the certificate
or voucher program, preferring to wait for admission to the other
tenant-based program. However, if an applicant refuses offers of
admission to both of the tenant-based programs, the HA may remove the
applicant from the waiting list for tenant-based assistance.
[Sec. 982.205(c)(2)]
Relation to Other Subsidized Housing Programs
The rule provides that a family may apply for, receive or refuse
other housing assistance without losing the opportunity for listing on
the Section 8 tenant-based waiting list. For this purpose, ``other
housing assistance'' means a federal, State or local housing subsidy,
as determined by HUD, including public or Indian housing.
[Sec. 982.205(c)(1)] Of course, the family may not continue to receive
two forms of housing subsidy after admission to the tenant-based
program.
The proposed rule provided that an HA must combine the waiting list
for the tenant-based programs with the waiting list for project-based
certificate assistance, and that the HA may merge its tenant-based
waiting list with the waiting list for its public or Indian housing
program, or Section 8 moderate rehabilitation program. Comments object
to requiring a common waiting list for tenant-based subsidy and the
project-based certificate program. Comments note that many families on
a common waiting list would only accept the offer of a tenant-based
subsidy, and that it is cumbersome for the HA to administer a waiting
list covering tenant-based and project-based units.
HUD concurs that the decision whether to combine the tenant-based
and certificate project-based waiting lists should be left to local
choice by individual HAs. The rule removes the proposed requirement to
use the same waiting list for the tenant-based programs as for the HA's
project-based certificate program.
The rule provides that an HA may merge the waiting list for tenant-
based assistance with HA waiting lists for admission to other assisted
housing programs--including project-based programs administered by the
HA (such as the project-based certificate program or the public housing
program). The decision whether to merge the program waiting lists rests
in the discretion of the HA. If the HA elects to merge the program
waiting lists, selection from the merged waiting list is subject to HUD
regulations and requirements for each of the covered programs.
[Sec. 982.205(b)(1)]
Management of the Waiting List
An HA must give public notice that the waiting list is open. The HA
may adopt criteria defining who can apply, but the limitations must be
stated in the public notice. [Sec. 982.206] The final rule adds a new
provision clarifying that the HA may not arbitrarily refuse
applications when the waiting list is open. The rule now provides that
if the waiting list is open, the HA must accept applications from
families who meet the criteria in the HA notice unless there is a
``good cause'' for not accepting the application, such as a denial of
assistance for one of the grounds listed in the regulation.
[Sec. 982.206(b)(2)]
Comments ask HUD to provide guidance on how and when to ``purge''
or ``update'' the waiting list. They state that the rule should not
allow the HA to drop families who fail to demonstrate continued
interest in assistance under the program. Comments state that the HA
should have a rational process for updating the waiting list. They
state that HAs should be required to establish procedures to protect
applicants from being arbitrarily dropped from the waiting list.
HUD does not require an HA to purge its waiting list. Usually, an
HA purges the waiting list when the list becomes unmanageable, or the
HA is unable to contact families. HUD believes that the HA should
retain discretion in management of the waiting list, in determining
when names should be dropped from the list, or in using a new or
updated list. HUD has not adopted recommendations to add new
restrictions on HA procedures for determining the active waiting list.
Individual applicant families do not have a right to be placed on
the waiting list, or to a waiting list position. [Sec. 982.202(c)] The
HA is charged with the task of distributing limited available
assistance resources among eligible families. To this end, the HA is
legitimately vested with broad discretion to develop reasonable local
policies for managing the process for admission of eligible families.
The HA policies may properly reflect local values and local choices.
The HA must comply with HUD requirements, including requirements
for eligibility and preference. Within these requirements, HAs have
wide latitude to develop a fair, orderly and economical process for
admission of families. Because the universe of eligible families is
generally much larger than the number of available slots, an HA needs
to achieve a balance between the need to maintain a pool of families
for admission to the program as openings occur, and the burden and
expense entailed to support a waiting list that is disproportionate to
available program resources. So long as the size of the HA waiting list
is sufficient to fill available openings, an increase in the waiting
list does not increase the number of families assisted. Rather,
enlargement of the list absorbs funds that could otherwise be used for
assistance to families--for example, by providing additional search
assistance to selected families.
Under this rule, HAs may decide when and how to purge the waiting
list. The exercise of this discretion does not affect any property or
procedural rights of individual applicants. The rule provides that:
``The HA administrative plan must state HA policy on when applicant
names may be removed from the waiting list. For example, the policy may
provide that the HA will remove names of applicants who do not respond
to HA requests for information or updates, or who have refused offers
of tenant-based assistance under both the certificate program and the
voucher program.'' [Sec. 982.204(c)(1)]
The rule emphasizes that the HA's system for purging the waiting
list may not prejudice the rights of a disabled applicant. The HA may
not strike the name of a disabled applicant whose failure to respond to
HA requests was caused by the applicant's disability. The HA must
provide a reasonable accommodation that allows the disabled applicant a
fair opportunity for response to the HA. [Sec. 982.204(c)(2)]
Comments ask HUD to require all HAs to accept completed
applications by mail. The Department has not accepted this
recommendation. HAs use many different methods of taking applications.
The Department has no reason to impose a particular method for taking
applications. HAs are encouraged to use various locally-determined
methods of taking applications, including home visits to applicants who
are unable to reach the HA office. However, HAs should be aware of
their obligation to make the application process accessible to
applicants with a full range of disabilities.
Preference in Admission
Residency Preference
As in the past, the rule provides that an HA may adopt a residency
preference for admission of families on the HA waiting list.
[Sec. 982.208] ``Residency preference'' means an HA preference for
admission of families that reside in a specified area, including a
family with a member who works or has been hired to work in the area.
``Residency preference area'' means the specified area where a family
must reside to qualify for a residency preference. [Sec. 982.208(a)]
The final rule also clarifies when an HA may establish a residency
preference for a part of the HA jurisdiction. If HUD approves, an HA
may adopt a residency preference that establishes a county or
municipality as a residency preference area. However, an HA may not
establish a residency preference for an area smaller than a county or
municipality. [Sec. 982.208(c)] An HA may elect to use a separate
waiting list for a county or municipality. [Sec. 982.205(a)(1)]
In addition, the final rule provides that selection for admission
to the program may not be based on where a family lives before
admission to the program. As an exception to this prohibition, the rule
provides that an HA may target assistance for families who live in
public housing or other federally assisted housing.
[Sec. 982.202(b)(2)]
The rule provides that an HA may use a residency preference either
(1) as a ``ranking preference''--to select among federal preference
holders, or (2) as a ``local preference''--to select among families
that do not hold a federal preference. [Sec. 982.208(f)] Applicants
with family members who work or who have been hired to work in the
residency preference area must be treated the same as families that
reside in the residency preference area. [Sec. 982.208(d)] A residency
preference may not be based on how long the family has lived in or
worked in the HA jurisdiction or the residency preference area.
[Sec. 982.208(e)] A residency preference must be approved by HUD.
[Sec. 982.208(b)]
Some public comments approve local residency preferences. Other
comments object to such preferences.
Comments claim that HA residency preferences are not authorized
under the preference statute, arguing that such preferences do not
further any other national housing objective. HUD does not agree with
this comment. Nothing in the preference statute precludes use of
residency preferences.
In admission of families who qualify for the federal preference,
federal law does not dictate the order of admission among preference
holders. An HA may adopt a residency preference for admission of
federal preference holders who are local residents before admission of
federal preference holders who are not local residents.
In a non-federal preference admission, the law allows broad scope
for HA adoption of local preferences to meet ``local needs and
priorities''. The local need and priority may accommodate the desire to
serve local residents before families who do not reside in the
community. The law provides that the purposes of a local preference
``may include'' a preference adopted to achieve statutory objectives of
national housing policy. The listing of preference purposes in the law
is not an exclusive enumeration of the purposes for which the HA may
adopt a local preference. In addition, the adoption of a local
residency preference may be consistent with the objective of providing
housing to local residents in accordance with the broad objectives of
national housing policy. [Sec. 982.209(a)]
Comments state that an HA should use a single waiting list for the
whole HA jurisdiction. Other comments state that HUD should not permit
an HA to establish a separate waiting list for an area smaller than a
county. Comments recommend that a large-area HA should be allowed to
maintain a separate waiting list or preference for residents of a
``reasonable subdivision'' or region of the HA jurisdiction.
In the tenant-based programs, an HA residency preference affects
entry to the housing program, and availability of the HA's housing
subsidy resources for applicant families. However, the use of a
residency preference does not affect geographic mobility of families
once admitted to the program. During the first year after admission,
all families may move anywhere in the HA jurisdiction. After the first
year in the program, families may move anywhere in the State or
metropolitan area under statutory portability procedures. (For a family
that lives in the HA's jurisdiction when the family applies for
assistance, the right of portability applies as soon as the family is
admitted to the program.)
Comments state that local residency preferences must comply with
civil rights requirements, and should be approved in advance by HUD
Fair Housing and Equal Opportunity. Comments also state that HUD should
not approve a residency preference that would have a ``racially
exclusionary effect''. The comments also allege that HUD routinely
approves HA residency preferences, and that HUD approval is not founded
on an adequate fair housing analysis.
HUD emphatically agrees that HA admission policies, including any
residency or other preference, are subject to civil rights
requirements. HA selection policies are included in the HA
administrative plan and the HA equal opportunity plan.
As in the past, any residency preferences must be submitted for
review and approval by HUD. The Department will be undertaking a full
notice and comment rulemaking on standards or procedures for approval
of HA residency preferences.
Federal Preference: General
Under federal law, a housing authority with a Section 8 certificate
or voucher program must give preference for selection of families that
are:
(1) Involuntarily displaced.
(2) Homeless or living in substandard housing.
(3) Paying more than 50 percent of income for rent.
These are known as the ``federal preferences''.
The law requires federal preference for at least 90 percent of the
families who initially receive tenant-based assistance in a one-year
period. For the other 10 percent of admissions, the HA is not required
to award a federal preference.
The new rule establishes the same federal preference requirements
and non-federal preference admission limit for the tenant-based
certificate and voucher programs. The rule provides that at least 90
percent of total waiting list admissions to the Section 8 tenant-based
programs in each successive one-year period must be families that
qualify for federal preference (if federal preference holders are
available on the waiting list). However, up to ten percent of such
admissions during the year period may be families that do not qualify
for federal preference. [Sec. 982.207(b)]
This rule amends requirements for federal preference selection of
assisted families in the Section 8 certificate and voucher tenant-based
programs. The National Affordable Housing Act of 1990 (NAHA) enacted
changes concerning HA preferences in selecting Section 8 program
participants. [1990 NAHA, Section 545, Pub. L. 101-625, 104 Stat. 4218-
4220] Later legislation provides that the NAHA Section 8 preference
changes must be implemented by April 26, 1993, through a notice and
comment rulemaking. [Housing and Community Development Act of 1992,
Section 104, Pub. L. 102-550, 106 Stat. 3684] This rule implements the
NAHA preference changes for the certificate and voucher programs.
Comments state that an HA needs clarification of federal preference
requirements for consistent program administration. The rule is re-
written and re-organized for greater clarity in how to apply the
statutory preferences. For the same reason, the rule also includes a
number of new or revised definitions of preference terms.
However, the rule has left largely unchanged the regulatory
definitions of the three statutory preferences. With HUD field office
approval, an HA can adopt local modifications of the standard
preference definitions.
The old rule stated procedures that could be used by an HA to
verify the federal preference claimed by an applicant family. However,
an HA was not required to use these procedures. Since the verification
procedures are not mandatory, they need not be stated in the rule. The
final rule deletes the description of optional verification procedures.
Limit on Non-Federal Preference Admissions
Under the law, federal preference applies for 90 percent of the
families who ``initially receive assistance in any 1-year period''. [42
U.S.C. 1437f(d)(1)(A)(i) (certificates) and 1437f(o)(3)(B) (vouchers)]
Public comments object to the 10 percent limit on non-federal
preference admissions, and challenge the value of the statutory federal
preference scheme. Comments state that assistance should be distributed
first-come first-served. Comments state that the rule should increase
the permitted percentage of non-federal preference admissions, so an HA
can serve more families who do not qualify for federal preference--such
as the working poor or families who need help to become economically
self-sufficient; families at risk of becoming homeless; families in
rural areas.
Comments state that the federal preference requirements produce
much paperwork for little benefit. Almost all families that are income
eligible also qualify for federal preference. By contrast, other
comments assert that only a fraction of waiting list families qualify
for federal preference, and that 10 percent of admissions is not a
sufficient allowance for non-preference admissions. Commenters doubt
that the preference requirements are effective in achieving self-
sufficiency and equity. Others object to the difference in the
percentage of non-preference admissions allowed by the law for public
housing (50 percent), Section 8 project-based assistance (30 percent)
and Section 8 tenant-based assistance (10 percent). Many comments are
criticisms of the statutory preference requirements, rather than
objections to HUD's implementation of the law.
Comments indicate that the regulation should clarify how to apply
the limit on non-federal preference admissions. Should the limit be
tracked program-by-program? Does the count of families that initially
``receive assistance'' include a family that receives a certificate or
voucher from the HA, or only count if the HA has executed an assistance
contract for the family? What is the time period for applying the local
preference admission limit? Comments state that the rule should make
clear that the requirement to admit a federal preference holder before
a non-federal preference holder does not apply to a local preference
admission within the 10 percent limit.
The rule provides that: ```Local preference limit' means ten
percent of total annual waiting list admissions to the an HA's tenant-
based certificate and voucher programs. In any year, the number of
families given preference in admission to the HA tenant-based
certificate program and voucher program over families with a federal
preference may not exceed the local preference limit.''
[Sec. 982.207(b)(1)]
Under the old certificate and voucher program rules, the 10 percent
limit on non-federal preference admissions was applied separately for
admissions to each program. In this rule, the limit applies to total
waiting list admissions to the HA tenant-based certificate and voucher
programs, rather than as a limit on admission to each separate tenant-
based program. The HA is not required to apply the 10 percent limit in
each separate tenant-based program, so long as the HA does not breach
the limit for admissions to both programs together.
The statutory preference quota applies to a family that ``initially
receives assistance'' in the certificate or voucher program. [42 U.S.C.
1437f(d)(1)(A)(i) (certificates) and 1437f(o)(3)(B) (vouchers)] Under
this rule, ``admission'' for tenant-based assistance is defined as the
effective date of the first HAP contract executed by the HA for a
family in a tenant-based program. [Sec. 982.3] The HAP contract is
effective on the first day of the initial lease term. The term of a HAP
contract for tenant-based assistance follows the term of the lease
between the family and the owner. Calculation of the local preference
limit, and of non-federal preference admissions charged against the
limit, does not include cases where the HA has only issued a voucher or
certificate to an applicant family, but the initial lease term has not
commenced.
Under this rule, the local preference limit on admission of
families that do not qualify for federal preference only applies to
admissions from the HA waiting list. The local preference limit does
not apply to a ``special admission'' using funding awarded to the HA to
provide assistance for specific families. For example, the federal
preference requirement and local preference limit do not apply if HUD
has given the HA funding for specific families in a specific project,
such as a family living in a project sold by HUD. Non waiting list
admissions are not included in the base of program admissions to which
the federal preference percentage is applied. In addition, such
admissions are not counted against the 10 percent limit on non federal
preference admissions. [Sec. 982.207(b)(2)]
The law mandates a ``preference'' in selection of families. The law
therefore implies that federal preference applies when the HA is
exercising a choice between a qualifying family and a non-qualifying
family. In such an admission, the HA must ``prefer'' a qualifying
family over a non qualifying family. Conversely, however, if a
qualified family is not available for admission, the HA is not
presented with a choice between a qualifying and a non-qualifying
family, and is not required to give preference to a qualifying over a
non qualifying family.
Under the proposed rule, federal preference requirements would only
apply to admissions where there is a choice between a federal
preference holder and a non federal preference holder. Otherwise such
an admission would not be included in the computation of families which
initially receive assistance during the year (the base to which the
statutory percentage applies), and selection of the family would not be
counted against the 10 per cent limit on non federal preference
selections.
For ease of administration and understanding, the final rule
changes the proposed procedure for calculating and applying the limit
on non federal preference admissions. In this rule, all waiting list
admissions (that is, all admissions other than a ``special admission'')
are included in the base used to determine the 10 per cent local
preference limit on non federal preference admissions. The base is not
limited to admissions where there is a choice between a federal
preference holder and a non-federal preference holder.
However, if a federal preference holder is not available, the
admission of a family that does not qualify for preference does not
count against the federal preference limit. The final rule provides
that the 10 percent local preference limit only applies to the
admission of a non-qualifying family ``over families with a federal
preference.'' [Sec. 982.207(b)(1)] If a federal preference holder is
available for admission, the admission of a non-federal preference
family is counted against the 10 per cent local preference limit.
Conversely, if a federal preference holder is not available for
admission, the admission of a non-federal preference holder is not
counted against the HA's 10 percent local preference limit.
The federal preference requirements and limit also do not apply
when a family is received in an HA's tenant-based program under
portability procedures. The rule clarifies that in applying local
preference limit for a receiving HA, the beginning of assistance for
the portability family is not counted against the receiving HA local
preference limit. [Sec. 982.207(b)(3)] However, admission of the family
is counted against the initial HA's local preference limit.
The local preference limit applies to admissions ``in any 1-year
period''. The rule does not prescribe the HA choice of an appropriate
year period for applying the limit, such as the calendar year, the
federal fiscal year or the HA fiscal year.
Types of Preference
In the vocabulary of the proposed rule, HUD distinguished between
``federal preferences'' and other ``local preferences''. As used in the
proposed rule, the term ``local preferences'' would refer to HA
admission preferences adopted by an HA to meet local needs and
priorities, including preferences used to select between families that
qualify for federal preference (admissions that count toward the 90 per
cent of federal preference admissions), as well as preferences used to
select between families that do not qualify for federal preference
(selections counted against the 10 per cent limit on non federal
preference admissions).
In the text of the law for the Section 8 certificate program, the
term ``local preferences'' refers to preferences used in selection of
families who do not qualify for a federal preference (subject to the 10
per cent limit). For such ``remaining assistance'' the HA must give
preference under a system of ``local preferences'' established by the
public housing agency in writing and after public hearing to respond to
local housing needs and priorities. [42 U.S.C. 1437f(d)(1)(A)(ii)] The
voucher statute refers to a ``system of preferences'' established by
the HA for this purpose. [42 U.S.C. 1437f(o)(3)(B)]
This final rule adopts the terminology used in the certificate
statute. In the rule, the term ``local preference'' refers only to a
preference used by the HA to select among waiting list families without
regard to their federal preference status. [Sec. 982.3 and
Sec. 982.207(a)(3)(iii)] The rule has also added a new term ``ranking
preference'', designating a preference used by the HA to select among
families that qualify for a federal preference. [Sec. 982.3 and
Sec. 982.207(a)(3)(ii)] To summarize, the HA scheme for selection from
the waiting list may comprise three types of preference: a federal
preference directed by federal law for at least 90 percent of waiting
list admissions, a ranking preference used to select among federal
preference holders, and a local preference used to select among
families that do not qualify for federal preference.
Drug Crime Eviction: Disqualification for Preference
The rule implements legislation that denies federal or local
preference for a person or family evicted from Section 8 or public
housing in the last three years because of drug-related criminal
activity. [1990 NAHA, Section 545, 104 Stat. 4218-4220] The proposed
rule would only have denied a federal preference. The rule is broadened
to provide that the evicted family may not be granted a federal
preference, local preference or ranking preference. [Sec. 982.207(f)]
An applicant family may not be granted a preference if any member of
the family was evicted in the last three years from Section 8 housing
(project-based or tenant-based) or from public or Indian housing
because of drug-related criminal activity.
Public comments largely approve denying an admission preference to
persons who were evicted from assisted housing for drug-related
criminal activity. However, comments note that implementation of this
requirement involves the HA in screening for prior behavior of
applicants. In the Section 8 tenant-based programs, the HA is generally
prohibited from screening program applicants as prospective tenants.
By law, the family may not be granted a federal or local preference
if the family was evicted for drug-related criminal activity in the
last three years. Comments urge HUD to set a ``statute of limitations''
on denial of preference for drug-related criminal activity, asserting
that the rule should allow admission of person who have paid their debt
to society.
This rule follows the limitation prescribed in the law. Under the
law and this rule, preference is denied only if the family member was
evicted in the last three years, but is not denied for an eviction
prior to that time. The limitation in the law is pegged to the time of
eviction for drug-related criminal activity, rather than the time when
the crime was committed. The statutory scheme should not be complicated
by adding a secondary limitation based on when the person committed a
crime for which the person was evicted in the last three years.
Comments assert that families whose members engage in drug crime
should be barred from the program, not merely denied an admission
``preference''. The HA should not be required to place the family on
the waiting list.
The federal preference scheme governs the order of admission among
families otherwise eligible and qualified for admission. However, the
statute and regulation requiring denial of an admission ``preference''
because family members were evicted from assisted housing because of
drug related criminal activity do not affect at all the independent
authority of the HA to deny program admission for drug-related criminal
activity, or for other bases allowed under the rule. The allowable
grounds for denying assistance are explicitly listed in the program
rules. (Currently at Sec. 882.210 for the certificate program and
Sec. 887.403 for the voucher program. These provisions will be combined
and conformed in the second stage of this unified rule.) Program
regulations provide that the HA may deny assistance if a family member
has engaged in drug-related or violent criminal activity. [For the
certificate program, see Sec. 882.118(b)(4) and Sec. 882.210(b)(4)] If
the HA has grounds for denial of assistance, the HA is not required to
list the family on the waiting list, or to admit the family off the
waiting list.
Comments state that the HA should be permitted to deny a preference
even if the family was not evicted for drug-related criminal activity.
They recommend that the HA should be permitted to deny preference if
the family was evicted for other reasons, or moved out before eviction,
or if the family violated program requirements.
If a family qualifies for a federal preference under the HA
selection procedures (including the HA definition of the individual
federal preferences), and was not evicted for drug-related criminal
activities, the HA may not deny the federal preference. However, the HA
may deny admission to the tenant-based programs for any of the grounds
stated in the program regulations, such as failure to pay public
housing rent, or fraud in a federal housing program. In addition, since
preferences for selection among federal preference holders are not
prescribed by federal law or program rules, the HA is free to adopt a
system of ranking preferences to reflect local policies and concerns
(so long as the preference system does not incorporate prohibited
selection criteria).
Comments ask the meaning of ``drug-related criminal activity''.
Comments note that there should be objective standards for determining
when a family member has engaged in such activity, such as arrest or
conviction. The term drug-related criminal activity is defined in the
law and rule. [42 U.S.C. 1437f(f)(5); Sec. 982.3] The definition covers
both illegal dealing in drugs (manufacture, sale or distribution) and
illegal use of drugs. The term embraces drug crimes that are illegal
under State or federal law. The definition of a specific criminal drug
crime is found in the State or federal criminal codes and caselaw that
define the elements of a criminal act. In principle, the determination
that a family member was evicted for drug-related criminal activity
does not depend on an arrest or conviction, though the fact of an
arrest or conviction may facilitate the HA determination whether the
family member was evicted because of the crime.
Comments point out the practical problems in determining whether
family members were evicted from Section 8 or public housing for drug-
related criminal activity. Comments remark that it will be hard to
implement the preference disqualification without a national tracking
system. An HA does not know what happened in another program or
jurisdiction.
HUD agrees that it will not be easy to enforce the statutory denial
of preference for families evicted for drug-related criminal activity.
For families evicted by a Section 8 owner, there may be no records, or
readily accessible records, of such eviction. For example, local court
records may show only that the court issued a judgment or order of
eviction, but without stating the grounds, and may not identify the
names of residents other than the defendant tenant. The HA is most
likely to know about prior drug eviction only if the family lived in
the HA's own public housing and was evicted by the HA itself. HAs may
be forced to rely largely on the representation or certification by the
applicant family that no family members were evicted for drug crime
from a Section 8 or public housing program in the three preceding
years.
By contrast, it may be easier for an HA to simply deny admission to
the program because of drug-related or violent criminal activities by
family members (rather than to deny a preference because of such
activities, or because of an eviction for such activities). This HA
determination does not require a finding that the family had also been
evicted for the criminal activity.
The law provides that the HA may grant a federal or local
preference if the evicted ``tenant'' has completed an HA-approved
rehabilitation program. In this context, HUD construes the word
``tenant'' as referring to a person who engaged in drug-related
criminal activity at a prior residence. The rule provides that the HA
may grant a selection preference to a family with a member evicted in
the last three years for drug-related criminal activity ``if the HA
determines that the evicted person has successfully completed a
rehabilitation program approved by the HA''. [Sec. 982.207(f)(1)]
The law also provides that the HA may ``waive'' the preference
prohibition under standards established by HUD. 42 U.S.C.
1437f(d)(1)(A)(iii) and 42 U.S.C. 1437f(o)(3)(B). The standards must
permit the HA to grant a waiver for an individual who ``clearly did not
participate in and had no knowledge of'' the drug-related criminal
activity, or when ``circumstances leading to eviction no longer
exist''. The rule provides that the HA may waive the federal preference
prohibition if the HA determines either that the evicted person
``clearly did not participate in or know about the drug-related
criminal activity'', or that the evicted person ``no longer
participates in any drug-related criminal activity''. [Sec. 982.207(f)
(2) and (3)]
Comments note that it is hard for an HA to determine if a family
member has ``successfully completed'' a rehabilitation program, or knew
of drug-related criminal activity in a prior unit. Comments recommend
that HUD define the meaning of successful completion. HUD agrees that
it will be hard for HAs to render a sound judgment on these questions.
However, these problems are inherent in the waiver law as enacted by
the Congress. Ultimately, the decision on whether to grant relief from
the preference prohibition rests in the judgment of the HA. The HA may
require the family to present information or testimony that will
satisfy the HA. HUD will not prescribe additional definitions or
instructions. Each HA is free to work out the most practical ways of
dealing with these questions.
Denying Admission to Preference Holder
Comments ask if the HA can deny assistance to a family that was
previously terminated from the Section 8 program, but applies for
readmission and now qualifies for federal preference. The HA may deny
admission to the tenant-based programs for the grounds listed in the
program rules. (This rule on program admissions does not affect the
current program rules on grounds for denial or termination of
assistance in the certificate and voucher programs. This subject will
be covered in the second phase of this rule.) As previously remarked,
the federal preference scheme affects the order of admission of
otherwise qualified families, but does not affect the determination of
who may be qualified for admission. The allowable grounds for
terminating assistance to a participant are also grounds for denial of
assistance. If there are proper grounds for denial, the HA may refuse
listing on the waiting list without regard to the family's federal
preference status.
Under the current program rule, behavior in a prior tenancy is not
a ground for denial of assistance. Comments state that a family that
causes damage or infestation to a prior residence should not qualify
for federal preference. The proposed rule provided that a participant
in the tenant-based programs is responsible for family-caused damage to
an assisted unit, and for infestation caused by poor family
housekeeping. [See Subpart L of the February 24, 1993 proposed rule. 58
FR 11352 et seq.]
Provisions on family obligations, and on grounds for denial of
assistance will be included in the second phase of this rule. At this
time, family-caused damage or infestation in a prior assisted or
unassisted unit is not a ground for denial of assistance. Moreover,
such behavior is not grounds for denying a statutory federal preference
for which the family is otherwise qualified. In development of the
rule, HUD will consider whether the HA should be authorized to deny
admission for such behavior in prior assisted or unassisted occupancy,
not just for such behavior as a participant in the Section 8 tenant-
based programs.
Denying Claim of Federal or Other Preference: Procedure
Comments state that the rule should require the HA to provide the
same procedural protections when the HA denies a claim of Federal
preference as for a denial of assistance. The rule provides that the HA
must give the applicant a brief statement of the reasons for a
determination that the applicant does not qualify for federal
preference, and must afford the applicant an opportunity to meet with
an HA representative to review the HA determination.
[Sec. 982.210(d)(1)] The same procedures are used under the existing
rule. In addition, the final rule provides that the HA must give an
applicant the same opportunity for review of the HA's decision denying
a ranking preference (among Federal preference holders), or a local
preference (among families that do not qualify for Federal preference).
HUD believes the procedures provide adequate opportunity for a
second look at an HA determination denying a federal, local or ranking
preference. The HA must determine federal or other preference for the
great mass of program applicants, in the routine processing of each
individual application for admission. A decision granting a preference
does not assure ultimate admission. Most HAs have long waiting lists.
After listing, federal and other preference holders may wait years for
admission to the program.
Federal Preference: Definitions
Federal law requires a preference for displaced families, families
living in substandard housing and families with an excessive rent
burden. The preference rule defines each of these preferences. Comments
recommend some revisions of these definitions. Comments state that an
HA should have authority to grant exceptions to the standard preference
definitions in the rule.
For the most part, this rule does not substantially change the
existing regulatory preference definitions. Under the rule, the HA has
room to tailor the definition of each federal preference to local
circumstances and local preference policy. If the HA wants to use a
different or modified preference definition, the HA may submit an
alternative definition for review and approval by the local HUD office.
[Sec. 982.210(a)] In addition, the HA may adopt its own procedures to
verify that an applicant qualifies for a federal preference.
[Sec. 982.210(c)(3)(ii)] The HA does not have to get HUD approval
before implementing its own verification procedures.
Comments note that HAs need guidance in interpreting the rule. In a
program handbook, HUD will furnish additional guidance on how to
interpret and apply the rule.
Involuntary Displacement Preference
Displacement by domestic violence. The definition of involuntary
displacement gives federal preference to a family that is forced to
move because of physical violence by a member of the household.
[Sec. 982.211(b)(4)] This preference allows other household members to
move away from a spouse or other person who has abused members of the
family.
The applicant must certify that the former abuser will not reside
with the applicant family unless the HA has given advance written
approval. If the abuser returns to the family, household members are
again exposed to the threat of domestic violence.
[Sec. 982.211(b)(4)(iii)(B)] The purpose of the certification is two-
fold: to minimize or sanction cases where there is a bogus claim for
federal preference because of domestic violence, as well as cases where
the abuser's return to the household defeats the purpose of the federal
preference.
Comments support the certification requirement, but recommend that
the rule provide that violation of the certification is grounds for
termination from the program. The recommendation is adopted. The rule
provides that if a family is admitted on the basis of this preference
(involuntary displacement because of domestic violence), the HA may
deny or terminate assistance for breach of this certification.
Composition of the assisted family must be approved by the HA. The HA
must approve return of the former abuser to the assisted household.
Thus the HA may also deny or terminate assistance where the family has
not asked and obtained HA permission for occupancy by a former family
member.
In any individual case, the decision to deny or terminate
assistance for this reason lies in the discretion of the HA. The HA
``may'' terminate assistance, but is not required to exercise this
authority. Even if the family was admitted with federal preference, so
that the family can escape a threat of domestic violence, changes in
family circumstance after admission may justify continued assistance
for the family, for example, if the former abuser has received therapy
or counselling that appears to minimize likelihood of recurrence.
Displacement by owner action. The definition of involuntary
displacement gives preference to applicants forced to vacate a dwelling
unit by certain types of owner action, such as owner action that
withdraws the unit from the rental market. [Sec. 982.211(b)(3)]
Comments recommend that involuntary displacement should not cover a
displacement because a landlord evicts the family, but should only
cover displacement because of disaster, displacement by a government
program, or displacement because of spousal abuse.
No change is required. Under the rule, a family that is evicted by
an owner for violation of the lease does not qualify for preference. To
qualify for preference, the family must have ``met all previously
imposed conditions of occupancy''. [Sec. 982.211(b)(3)(ii)(B)] In
addition, with HUD approval, an HA may adopt an alternative definition
that specifically excludes displacement because of owner eviction.
Comments suggest that in a case where an adult ``child'' is forced
out of the parent's unit, the child should not be treated as
involuntarily displaced unless there was a prior rental agreement
between the owner and child. This comment may reflect concern that in a
family context an alleged involuntary displacement may not be genuine.
However, HUD is not persuaded that this change should be included in
the national definition of involuntary displacement. In any case, an
individual HA may incorporate the suggested modification in the local
definition.
Displacement by government action. The definition of involuntary
displacement in the rule gives preference to a family displaced by
government action in connection with code enforcement, or with a public
improvement or development program. [Sec. 982.211(b)(2)] Comments argue
that displacement because of code enforcement results from private
action, and should not be treated as displacement by government action.
Comments claim that the regulatory definition rewards the building
owner, as well as a family which ``elects'' to live in a building that
violates the code.
HUD does not agree that the grant of federal preference for a
family that is forced to live in sub-code housing is an inappropriate
``reward'' for a family that is forced to live in such circumstances.
Moreover, the preference is not a reward for the owner of the housing.
The family has the right to move to any available standard unit, not
just to another unit of the same landlord. The issuance of a
certificate or voucher helps the family move from substandard housing.
Some HAs claim that families move into substandard housing in order
to qualify for federal preference, and thereby speed up access to
subsidized housing. It is likely that such cases occur only or
principally for HAs that do not have long waiting lists of federal
preference holders, and where federal preference qualification may lead
to rapid entry to the programs. HAs that want to minimize possible
abuse of the federal preferences for persons displaced by code
enforcement, or for residents of substandard housing, may adopt ranking
preferences based on duration of a family's residence in substandard
housing. Alternatively, with HUD approval, the HAs could adopt modified
preference definitions designed to deal with this problem.
Displacement to avoid reprisals. The definition of involuntary
displacement is amended to permit the HA to grant federal preference
status if there is a danger of reprisal against a family member who
provides information on criminal activities to a law enforcement
agency. The HA may only grant a preference on this basis if the law
enforcement agency has carried out a threat assessment, and recommends
rehousing a family to avoid or minimize a risk of violence against
family members. [Sec. 982.211(b)(5)]
Displacement by hate crimes. The definition of involuntary
displacement is amended to permit the HA to grant federal preference
status for a family displaced by a ``hate crime''--defined as actual or
threatened violence or intimidation against a person or the person's
property because of race, color, religion, sex, national origin,
handicap or familial status. [Sec. 982.211(b)(6)] An applicant
qualifies for preference if a family member is a hate crime victim, and
the family has been forced to vacate its housing, or fear has destroyed
the family's peaceful enjoyment of its home. The HA must determine that
the hate crime occurred recently or is of a continuing nature.
Displacement: Need for accessible unit. The definition of
involuntary displacement is amended to provide that an applicant is
involuntarily displaced if:
--A member of the family has a mobility or other impairment that
makes the person unable to use critical elements of the unit; and
--The owner is not legally obligated to make changes to the unit
that would make critical elements accessible to the disabled person as
a reasonable accommodation. [Sec. 982.211(b)(7)]
Displacement: HUD disposition of multifamily project. A recent law
amends requirements governing HUD disposition of multifamily rental
projects (that were previously insured or assisted under the National
Housing Act or were subject to a loan under Section 202 of the Housing
Act of 1959). [Pub. L. 103-233, 108 Stat. 342, April 11, 1994] This law
amends the various federal preference statutes to specify that the
preference for families that are involuntarily displaced applies to
displacement ``because of disposition of a multifamily housing project
under section 203 of the Housing and Community Development Amendments
of 1978''. [Multifamily Housing Property Disposition Reform Act of
1994. Section 101(c) (``Clarification of Federal preferences''), 108
Stat. ______, amending 42 U.S.C. 1437f(d)(1)(A)(i) (certificates) and
1437f(o)(3)(B) (vouchers)]
The rule is amended to reflect this statutory change.
[Sec. 982.211(b)(8)] A family that is displaced because of the HUD
disposition may be assisted either as a federal preference admission
from the HA waiting list in accordance with the new law, or as a
special admission (non-waiting list) with funding provided by HUD for
this purpose [Sec. 982.203(b)(2)].
Substandard Housing
Substandard housing--Definition. The statute and rule give
admission preference to families that are homeless or live in
substandard housing. The rule defines when a unit is considered
substandard. [Sec. 982.212(a)]
Public comments recommend several changes in the definition of
substandard housing. In the existing preference rule, and in this final
rule, substandard housing is described by the physical attributes of
the unit. Conversely, substandardness is not defined by who occupies or
will occupy the unit. Comments recommend that the HA should be allowed
to treat as substandard--housing that is ``over-crowded'', or that is
occupied by more than one family, or that does not meet HA occupancy
standards (for the configuration of persons occupying the unit).
HUD has not followed the recommendations. A definition based on
unit occupancy patterns, as recommended by comment, would be more
subject to manipulation. Families can claim over-occupancy to
accelerate admission to the program. Over-crowding is harder to verify
than the physical condition of the unit. With HUD approval, an
individual HA can elect to adopt a local definition of substandard
housing that covers housing that is over-crowded.
Comments state that a disabled person who needs a home adapted for
disabled occupancy should be treated as an occupant of substandard
housing. However, a unit is not substandard merely because the unit is
inappropriate for its disabled occupant. Instead, it is more
appropriate to treat a disabled person who cannot continue to live in
an unsuitable unit as a person who has been involuntarily displaced,
and to afford a federal preference on this basis. In addition, for
admissions not subject to federal preference (10 percent of annual
waiting list admissions), an HA may adopt a local preference for
admission of disabled persons.
Substandard Housing: Family in Public Housing
If a family is living in public housing, and the family's apartment
is in fact substandard, the family qualifies for federal preference.
Comments agreed that a family should not be denied a federal preference
simply because the unit where the family lives is public housing. In
the certificate program, the law provides that a family may not be
denied a preference ``solely because the family resides in public
housing''. [42 U.S.C. 1437f(d)(1)(A)(i)]
Comments note that a family living in substandard public housing
may not be able to verify that the unit is substandard. However, if the
family is living in public housing run by the same HA (to which the
family is applying for Section 8), the HA is the family's present
landlord. An HA can readily verify if its own public housing unit is
substandard.
Of course, an HA may be embarrassed by the claim that the family's
public housing unit is substandard. However, the HA cannot properly
refuse verification for this reason, or refuse to take actions to
determine whether the unit is substandard.
Preference for Homeless
1990 legislation confirms that the preference for families in
substandard housing applies to families that are homeless or living in
a shelter for the homeless. Pub. L. 101-625 (Cranston-Gonzalez National
Affordable Housing Act), 11/28/90, section 545, 104 Stat. 4218-4219.
Since HUD's rules already provide that homeless families qualify for
the federal preference, no substantive change is required in this
rulemaking. [Sec. 982.212(c)]
The existing rule defines the term ``homeless family''. Comments
state that each locality should be allowed to define homelessness. An
HA may ask HUD approval to use local definitions of federal preference
terms, including local definitions of ``substandard housing'' and
``homeless family''. [Sec. 982.210(a)]
Comments state that HA admission of a homeless family should be
based on the family's current status, but should not be based on the
cause of homelessness. HUD has not adopted this comment. In addition,
in admission of homeless families, the HA may use ranking preferences
based on the cause of homelessness.
Federal or Local Preference for Resident of Temporary or Transitional
Housing
A family may currently reside in a homeless shelter or another form
of temporary housing. Under the HA preference system, the family may
qualify for a federal or local preference.
The proposed rule provides that the HA may adopt a local preference
for families that move from ``transitional housing or a homeless
shelter''. The 1990 preference law explicitly permits non-federal
preference admission of families who ``reside in transitional housing .
. .'' (that is assisted under the Mckinney Act). [42 U.S.C.
1437f(d)(1)(A)(ii) (certificates) and 1437f(o)(3)(B) (vouchers)]
Comments assert that a resident of transitional housing should be
given a local preference. Other comments correctly point out that a
family residing in a homeless shelter will generally qualify for
federal preference, and state that the family should not be admitted
under the authority for local preference.
The rule does not list examples of the statutory local preference,
including the HA option to grant a local preference for residents of
transitional housing. The HA does not need to use its local preference
admissions quota for families who qualify for federal preference. Under
existing preference rules, a family that is living in transitional
housing or a homeless shelter may qualify for federal preference.
The old preference rule provides that the definition of a
``homeless family'' includes a family living in a supervised
``shelter'' that is designed to provide ``temporary living
accommodations''. The old rule also specifies that such shelters
``include'' certain types of housing, such as ``transitional housing
for the mentally ill''. However, the listing of these shelter types is
illustrative, not exclusive, and includes transitional housing for
populations other than the mentally ill. The existing homeless family
definition also allows the HA to give a preference for persons in a
``temporary residence'' for persons to be institutionalized--a category
also embraced in the broader preference for persons in temporary living
accommodations.
In this rulemaking, the preference for persons living in temporary
accommodations is left substantially unchanged. However the list of
shelter type examples is revised to explicitly cover ``transitional
housing'' broadly, instead of referring to transitional housing ``for
the mentally ill''. [Sec. 982.212(c)(2)(ii)(A)] This revision does not
change the substantive import of the rule, and is merely intended to
make clear that the preference is not restricted to residents of
transitional housing for the mentally ill, but applies broadly to
residents of temporary housing accommodations, including transitional
housing.
Comments suggest that when the HA offers a certificate or voucher
to a family in transitional housing, the family should be allowed to
wait for completion of transitional housing services without losing its
place on the waiting list. HUD will not change the rule in response to
this comment. The decision whether to hold a family's waiting list
place should be left to the HA. However, the HA procedure may not
discriminate against persons with disabilities.
Rent Burden
Treatment of energy assistance payments. Federal law gives an
admission preference to families that pay more than 50 percent of
income for rent. For this purpose, the rule defines ``income'' and
``rent''. [Sec. 982.213(b)]
A family may draw benefits under a program that helps the family
pay for energy costs (utilities). The rule provides that if energy
assistance payments are not included in family income, the payments are
also subtracted in calculating the family's rent burden.
[Sec. 982.213(b)(3)] This provision is not changed from the prior rule.
Comments ask why energy assistance payments are subtracted from rent.
The purpose of the rent burden calculation is to determine how much
of a family's available income is consumed for payment of the family's
rent. Energy assistance payments cover a portion of family utility
costs. Energy costs that are covered by energy assistance payments are
not an additional rent burden for the family.
The calculation of family income excludes payments under the HHS
Energy Assistance Program. [58 FR 41287, 41288, August 3, 1993
(paragraph (v) on list of federally mandated exclusions)] Since such
payments are not included in income, inclusion in rent burden of costs
covered by the HHS payments would distort calculation of the family
rent burden (essentially by double-counting energy costs: first by
deducting from income, and second by counting as rent burden against
the balance of family income).
Amount of rent. Comments ask if the HA can verify the amount paid
as rent, instead of the amount due as rent. The statute is framed as a
preference for families that ``are paying'' more than 50 percent of
income for rent. Under the definition of ``rent'' in the existing rule,
rent is the ``actual amount due'' under the family's lease.
In implementing the statutory rent burden preference, HUD defines
``rent'' as the amount a tenant is contractually bound to pay the owner
as rent, not necessarily the amount that the tenant actually pays the
owner against the monthly rent due under the lease.
[Sec. 982.212(b)(2)(i)] A family's contractual obligation to pay rent
is a better gauge of the family's rent burden, than the amount the
family is able to scrape up for payment to the landlord. A family may
be unable to pay the full rent, and may be under the shadow of eviction
for non-payment. If the amount actually paid to the landlord is less
than 50 percent of income, the family would not qualify for a
preference based on the actual amount ``paid'' to the landlord. (The
smaller the amount ``paid'' as rent, the more difficulty in qualifying
for the rent burden preference.) In the present rule, as in the
existing rule, the determination of rent burden is based on rent owed
to the landlord.
Rent burden in rural areas. Comments state that some families don't
qualify for rent burden preference because rural areas have lower rent.
The comments urge flexibility in determining rent burden for rural
families.
The percentage rent burden (50 percent) needed to qualify for
preference is set by law. HUD does not have authority to allow use of a
lower percentage in rural areas. If rural or non-rural families can
rent units for less than the preference threshold, they do not qualify
for the preference.
Preference for Public Housing Residents
Summary of Law and Rule
For the certificate program, a 1990 law provides that a family may
not be denied federal preference or ``delayed or otherwise adversely
affected'' in receiving tenant-based assistance ``solely because the
family resides in public housing''. [42 U.S.C. 1437f(d)(1)(A)(i); 1990
National Affordable Housing Act, Section 545, 104 Stat. 4218-4219] The
amendment was introduced by Congressman Bartlett to preserve Section 8
federal preference status of families on the Section 8 waiting list
when admitted to public housing. [Transcript of May 21, 1990 markup by
Housing Subcommittee of Housing Banking Committee] Another law provides
that in selecting families for Section 8 certificate or voucher
assistance a housing agency may not ``exclude or penalize'' a family
solely because the family resides in a public housing project. [42
U.S.C. 1437f(s)]
For both tenant-based programs, the rule provides that if a public
housing family was on the HA Section 8 tenant-based waiting list when
admitted to the HA's public housing (since April 26, 1993), the HA
federal preference determination must be based on the situation of the
applicant at the time of admission to public housing (beginning of
initial public housing lease). [Sec. 982.210(c)(4)(ii)]
Example
At the time a family is admitted to an HA's public housing program,
the family is on the HA's waiting list for Section 8 tenant-based
assistance. The family also qualifies for federal preference as a
homeless family. The family keeps its federal preference status
(homeless) on the Section 8 waiting list.
Preference Retention: Purpose and Effect
The new rule implements the law which provides that a family may
not be denied federal preference or ``otherwise adversely affected'' in
admission to the certificate program ``solely because'' the family
resides in public housing. [42 U.S.C. 1437f(d)(1)(A)(i)] The law is a
statutory exception to the broad federal preference requirement (that
90 percent of certificate admissions must be families who currently
qualify for federal preference). The statutory exception does not apply
to the voucher program. However, under the voucher law, for good cause
HUD may permit an HA to admit more than 10 percent non-federal
preference holders before families who qualify for federal preference.
[42 U.S.C. 1437f(o)(3)(B)] HUD finds that the need for uniformity in
administration of the tenant-based programs is good cause to require
that HAs give preference for voucher admission of public housing
residents who would not otherwise currently qualify for federal
preference.
The new rule applies the same requirements for both Section 8
tenant-based assistance programs. An applicant for an HA's Section 8
program that is currently living in public housing of the same HA
qualifies for Section 8 federal preference if the applicant was
qualified for preference at the time the applicant was admitted to
public housing. [Sec. 982.210(c)(4)(ii)] This provision only applies if
the applicant:
(1) Was admitted to public housing on or after April 26, 1993--the
statutory deadline for implementation of preference requirements in the
National Affordable Housing Act of 1990. [Pub. L. 102-550, Section 104,
October 28, 1992, 106 Stat. 3684]
(2) Was qualified for federal preference at the time of such
admission.
(3) Was on the HA's Section 8 tenant-based waiting list at the time
of admission to the same HA's public housing.
Preference Retention: Family Need
Federal preferences direct housing assistance resources to families
with urgent housing needs. Usually, public housing residents do not
currently qualify for federal preference. For the most part, public
housing residents are not displaced, do not pay over fifty percent of
income for rent (most public housing families pay 30 percent of
adjusted income), and do not live in substandard housing.
Under the rule, federal preference for the public housing resident
is based on the family's federal preference situation at the time when
the family was admitted to public housing (if the family was on the
HA's Section 8 waiting list when admitted to the HA's public housing
program on or after April 26, 1993). Thus a family that was homeless
when admitted to public housing, but is now living in secure and decent
public housing, is treated the same as a homeless family on the street.
Both families benefit from the federal preference for admission of
families living in substandard housing.
In some cases, a public housing family will qualify for federal
preference because of the family's current situation. For example, a
family may currently live in a public housing unit that is substandard.
Thus a public housing family may receive federal preference for
admission to the Section 8 tenant-based assistance programs either (1)
because of the family's preference situation when admitted to public
housing, or (2) because of the family's current federal preference
status. The rule provides that the HA may not deny any admission
preference for which the applicant is currently qualified (federal,
local or ranking preference) because the applicant already resides in
public or other assisted housing. [Sec. 982.205(c)(1)]
HUD received many public comments on the proposed provision that
allows a family to retain its federal preference status at the time of
admission to public housing. Most comments strongly oppose this
requirement. Comments state that scarce housing resources should be
directed to families with the greatest need, not to families already
residing in decent, safe and sanitary public housing. Some comments
acknowledge that the regulation follows the intention of the law.
Comments assert that the language of the law does not support grant
of a preference based on the family's situation at a past time, before
the family entered public housing. Comments claim that the required
preference retention unfairly delays or denies assistance to other
families. The family's need and preference should be based on the
condition of the family's current housing.
Comments state that the preference for public housing residents is
unfair and harmful to:
--families that currently qualify for federal preference.
--families without federal preference.
--families living in other project-based assisted housing (non-public
housing).
--families living in private housing.
--families not currently receiving any form of housing assistance.
Other comments commend HUD's implementation of the requirement for
retention of federal preference. The comments state that the preference
is essential so a public housing family is not locked into public
housing projects which are highly segregated or disproportionally
minority.
HUD notes that the grant of federal preference to public housing
families that would not otherwise qualify for preference will
necessarily operate to limit Section 8 openings for other families.
Program selection is the competitive distribution of available
openings. By requiring the retention of a family's original preference
status, at the time of admission to public housing, the Section 8 rule
carries out the specific purpose of the law--that a family may not be
denied federal preference or ``otherwise adversely affected'' in
admission to the Section 8 program because the family resides in public
housing.
Preference Retention: Administration
Comments state that preference retention increases the HA
administrative burden. To implement this requirement, the HA must track
and verify the family's original preference status. By allowing HA
public housing families to move to the HA Section 8 program, the rule
will create public housing vacancy, turnover and financial burden.
Comments object that the preference retention rule treats public
housing as transitional housing. The rule implies that public housing
is bad housing, from which families are allowed to escape by operation
of an artificial preference. Operation of the preference undercuts
initiatives for improvement of public housing.
HUD agrees that the preference retention will cause public housing
turnover and associated HA administrative costs. However, the rule
faithfully implements the purpose of the law as expressed in committee
markup. The law is designed to facilitate a family's move from public
housing to Section 8. HUD is seeking repeal of the law. However, at
this time, there is no way to avoid the costs and administrative burden
of carrying out the law.
An HA must determine and verify the family's federal preference
status at admission to the HA's public housing program. At the
subsequent admission to Section 8, the HA can rely on information
obtained for the prior determination and verification.
Comments state that the preferential admission of public housing
families should not apply to more than five percent of annual
admissions to the HA Section 8 program. This recommendation is not
adopted. Under the law, HUD is not authorized to set a limit on the
percentage of Section 8 housing admissions for which the HA is
prohibited from denying a federal preference because a family resides
in public housing.
Preference Retention: For Families on Section 8 Waiting List
Under the proposed rule, the retention of federal preference would
apply if a family was on the Section 8 waiting list when admitted to
public housing on or after September 1, 1991. Under this final rule,
the retention of federal preference will apply to a family on the
Section 8 waiting list when admitted to public housing on or after
April 26, 1993. This date is the statutory deadline for rulemaking to
implement the 1990 preference law (six months from enactment of the
Housing and Community Development Act of 1992). [Pub. Law 102-550,
October 28, 1992, Section 104, 106 Stat. 3684]
Comments object that the retention of federal preference only
applies if a family is (1) on the Section 8 waiting list (2) at the
time of admission of public housing (3) after a specified date. The
comments state that preference retention should also apply to families
which apply for Section 8 after admission to public housing.
Comments state that the preference retention should cover families
admitted to public housing at any time in the past, or admitted since
passage of the Cranston-Gonzalez National Affordable Housing Act (NAHA)
on November 28, 1990 (prohibits denial of preference because a family
resides in public housing). Comments state that the rule favors new
public housing residents over older residents.
The Housing and Community Development Act of 1992 provides that the
preference amendments under the Cranston-Gonzalez Act must be
implemented through notice and comment rulemaking by expiration of the
180-day period beginning on the date of enactment of the 1992 law
(October 28, 1992). The 180-day period expired on April 26, 1993.
Although the Department did not complete the rulemaking by this
deadline, the final rule provides that the retention of federal
preference status applies to Section 8 waiting list families admitted
to public housing on or after that date. Such families would have
qualified for preference if the rule had been issued by the deadline
date.
HUD has not adopted recommendations to go beyond the requirements
of the law--by covering families that were admitted to public housing
before April 26, 1993, or who applied for Section 8 after admission to
public housing.
Public Housing Family: Denial of Preference
The rule provides that the fact that a family lives in public or
other assisted housing may not be used as a ground for denying a
federal, local or ranking preference for which the applicant is
currently qualified. [Sec. 982.205(c)(1)] If the family's public
housing unit is substandard, the family qualifies for federal
preference, the same as a resident of private substandard housing.
Comments generally approve allowing a federal preference for a public
housing resident who currently qualifies for federal preference.
Comments assert that the rule favors public housing residents over
applicants in private housing, and is therefore unfair. The rule does
not direct favored treatment for public housing residents (other than
by implementing the law that allows a public housing family to keep the
same preference status as at admission to public housing). Conversely,
however, the rule does not prohibit the adoption of a ranking or local
preference for residents of public housing. The rule provides that the
HA may target assistance for families who live in public or other
federally assisted housing. [Sec. 982.202(b)(2)]
Family Receiving HOME Tenant-Based Assistance
In the HOME Program, HUD allocates funds to State and local
governments for support of affordable housing. [24 CFR part 92] A
participating jurisdiction may choose to use HOME funds to provide
tenant-based rental assistance for low-income families during a period
of up to 24 months. Since the period of HOME rental assistance is
limited, Section 8 tenant-based assistance may be used to provide
continued rental assistance for a family after termination of the HOME
subsidy.
A family may meet Section 8 federal preference criteria at the time
the family begins tenant-based assistance under the HOME Program.
Usually, the family does not qualify for preference while receiving the
HOME subsidy. To facilitate the transition from short-term tenant-based
assistance under the HOME Program, the HOME statute provides that
recipients of HOME tenant based rental assistance qualify for Section 8
tenant selection preferences to the same extent as when they initially
received the HOME rental assistance. [42 U.S.C. 12742(a)(3)(D)] As in
the case of the public housing preference retention provisions
discussed above, the HOME statute permits the family to retain its
prior federal preference situation.
This rule provides that if a Section 8 applicant is currently
receiving tenant-based assistance under the HOME program, the HA
determines whether the applicant qualifies for Section 8 federal
preference based on the situation of the applicant at the time the
applicant began to receive tenant-based assistance under the HOME
program. [Sec. 982.210(c)(4)(i)] The family must show that it qualifies
for preference on this basis.
Local Preference
For non-federal preference admissions, the law provides that the HA
may use a system of local preferences ``to respond to local housing
needs and priorities''. In the vocabulary of this rule, the term
``local preference'' means a preference used by the HA to select among
applicant families that do not qualify for federal preference.
[Sec. 982.3, Sec. 982.207(a)(3)(iii)] Each year, ten per cent of
admissions can be families that do not qualify for federal preference.
The HA is not required to use or exhaust the 10 percent quota of
admissions not subject to federal preference. The HA may elect to admit
federal preference holders without drawing on the limit for local
preference admission.
Preference Hearing
The law provides that local preferences must be established in
writing and after public hearing. [42 U.S.C. 1437f(d)(1)(A)(ii) and
1437f(o)(3)(B); amended by 1990 NAHA, Section 545 (104 Stat. 4219), and
1992 Housing Act, Section 144 (106 Stat. 3714)] The law does not
contain any parallel public hearing requirement for HA policies
implementing the federal preference, or for HA preferences in selecting
among federal preference holders (called ``ranking preferences'' in
this rule). In the proposed rule, HUD proposed to require public
hearing both for adoption of preferences used to select among federal
preference holders, and also for adoption of preferences used to select
among families not qualifying for the federal preference.
Comment: Some comments approve the requirement to conduct a public
hearing on HA selection preferences, asserting that the hearing process
will provide valuable input. Other comments oppose the hearing
requirement. Comments claim that the hearing will be an administrative
burden, or that the hearing will attract attention of special interest
groups. HAs are able to establish other local policies without hearing.
HUD review of the HA preference policy is a sufficient check on the HA
policy.
Comments request that HUD relieve HAs of the hearing requirement in
communities where there is a ``CHAS'' (Community Housing Affordability
Strategy) that determines local needs and priorities. Comments suggest
that HUD allow an HA to use a published local notice, instead of a
public meeting or hearing. Comments ask whether, if the HA serves a
large area, a hearing in one part of the area is sufficient.
Response: The solicitation of public comments may elicit helpful
ideas or information, but necessarily entails some burden for the HA.
In the final rule, a hearing is only required for adoption of
preferences used in a non-federal preference admission, as required by
the law. This rule provides that local preferences may be adopted after
public hearing to respond to local housing needs and priorities.
[Sec. 982.209] The HA is not required to adopt a hearing process for
adoption of ranking preferences for selection among federal preference
holders (representing 90 percent or more of HA admissions).
At this time, HUD will not attempt to dictate a set hearing
procedure. The essence of the hearing requirement is that there should
be a reasonable process for soliciting representative comment by
interested publics, and for the comment to be ``heard'' (i.e.,
considered) by the HA. A variety of processes can be devised to satisfy
the hearing requirement, and the process used need not be elaborate or
expensive. The HA may consider appropriate ways of giving public
notice--whether by publication in the local press, posting in HA
offices and projects, notice to legal services offices or other service
organizations, or notice to applicants. The rule does not require that
the hearing must necessarily be cast as a ``meeting'' between HA
representatives and the public, so long as the HA has a procedure for
gathering and considering public comment. If the HA elects to frame the
hearing process as an open public meeting, the rule does not prescribe
any number of meetings or the number of hearing venues within the HA
jurisdiction.
Comments object to requiring public hearings for local preferences
already contained in the HUD-approved administrative plan, or ask if
hearing will only be required for new proposed preferences. Comments
state that hearing should only be required for a change in existing
local preferences.
Under this rule, the local preference hearing requirements will be
effective six months after publication of the rule (see ``effective
date'' provision of rule). The hearing requirements apply to local
preference admissions after expiration of the six month period. (The
hearing requirements are stated in Sec. 982.209(b).) After that point,
the HA may not continue to use existing local preferences until the HA
has conducted the public hearing required by law and this rule.
Hearings are only required for HA selection preferences that are
used for admission of families that do not qualify for federal
preference. In admitting families that qualify for federal preference,
HAs can continue to apply the scheme of federal and ranking preferences
in the HA's administrative plan.
In a separate rulemaking, HUD proposed revisions of federal
preference requirements for the public housing program (and for other
assisted housing programs). [58 FR 44968 (August 25, 1993)] HA
representatives asked whether an HA can hold a single hearing to
consider at the same time local preferences to be used both in the HA's
public housing program, and in its certificate and voucher programs.
Nothing prevents an HA from conducting a single hearing for this
purpose.
Purpose of Local Preference
For local preference admissions, the law leaves broad authority for
an HA to develop a local preference system to meet local housing needs
and priorities. The local needs and priorities ``may include'' certain
possible purposes listed in the law, or ``other objectives'' of
national housing policy. The law does not contain any comprehensive or
exclusive enumeration of allowable local ``needs and priorities''. The
law merely states that the ``specific purposes'' and ``other
objectives'' are included among the local needs and priorities that may
be served by adoption of a local preference.
In the proposed rule, HUD listed some examples of the purposes for
which the HA may establish a system of local preferences, including
preferences designed to achieve ``other objectives of national housing
policy''.
Comments approve allowing HA discretion to adopt local selection
preferences. Comments state that HUD should offer examples of the
national housing policy objectives for which the HA may adopt a local
preference. Comments stress that the HA should not be limited by the
``examples'' listed in the rule.
This final rule provides that the HA may establish a system of
local preferences ``to respond to local housing needs and priorities''.
[Sec. 982.209(a)] The law states that the local preference system may
be designed to achieve ``objectives of national housing policy affirmed
by the Congress''.
The local needs and priorities may include the objective to remedy
unsafe and unsanitary housing conditions, and to improve housing
opportunities for residents of the United States, particularly
disadvantaged minorities, on a nondiscriminatory basis, or may promote
other objectives of national housing policy affirmed by the Congress.
For example, see the statements of national housing policy in the
United States Housing Act of 1937 (which contains Section 8) [42 U.S.C.
1437]; and in the Cranston-Gonzalez National Affordable Housing Act of
1990 [Pub. L. 101-625, November 28, 1990, Section 102(3), 42 U.S.C.
12702(3).
An HA has broad discretion to adopt local preferences in accordance
with local circumstances and local judgment. The final rule does not
give examples of local preference purposes. The HUD program handbook
will give examples of possible local preferences, and advice on how to
set up a local preference system.
Other comments state that the HA preferences must not violate fair
housing requirements, and should be subject to HUD review and approval.
The HA policies for selection of program participants, including local
preferences and ranking preferences, must be contained in the HA's
administrative plan or equal opportunity plan. The selection policy
must meet fair housing requirements. Residency preferences must be
approved by HUD.
Particular Preferences
Comments recommend that the HA should have discretion to grant
preference for an elderly person who lives in an assisted project, but
who needs to move closer to family members or medical facilities. An HA
may adopt a ranking or local preference for this purpose.
Comments recommend that HUD require the HA to grant a preference
for a disabled veteran who is eligible for discharge from a hospital or
nursing home. Under the rule, the HA may choose to adopt a ranking or a
local preference for a disabled veteran who needs a rental subsidy to
lease accessible standard housing. However, the rule does not force the
HA to adopt such a preference.
The law provides that an HA may grant a local preference for the
purpose of assisting ``youth'' after discharge from foster care. The
proposed rule recited this optional local preference. Comments ask if
the ``youth'' would have to live with an adult. The adoption of such a
preference does not require any change in the criteria for admission of
families to the HA program. If the HA chooses to adopt such a local
youth preference, the HA may limit the preference to cases where a
minor will live with a parent or guardian or other person capable of
establishing and managing a household. The HA has the authority and
responsibility to define the operation of its local preference.
Comments recommend that the rule allow a preference for the ``near-
elderly'' (a person from 50 to 61 years of age). The HA has wide
latitude to fashion its systems of ranking and local preference, and
could adopt a ranking or local preference for admission of the near
elderly.
Comments recommend that the rule allow HA's with a large
jurisdiction to award preference to a family that wants to live in a
certain ``region'' of the HA jurisdiction. This suggestion is not
adopted. The rule continues traditional program policy that admission
may not be based on where the family will live with assistance under
the program. [Sec. 982.202(b)(3)] The tenant-based programs are
designed to maximize the ability of poor families to choose where they
want to live, and also to maximize opportunities for economic
advancement by free choice of housing. An assisted family may move
anywhere in the HA jurisdiction, or anywhere outside the HA
jurisdiction under portability procedures.
The HA preference system may limit the number of families that may
qualify for any ranking or local preference. [Sec. 982.207(a)(3)(iv)]
Selection by Random Choice or Time of Application
The proposed rule provides that date and time of application govern
selection among families with the same preference status. Comments
asked if the HA may select by ``lottery'' instead of date and time of
application.
The proposed rule was not intended to prohibit selection by
techniques of random choice among families on the waiting list. HUD
agrees that use of a variety of random choice procedures may be a fair
and workable way to distribute program openings among a large number of
applicants. The rule clarifies, as originally intended, that use of
date and time of application is not the only permitted technique for
sorting among applicants in a given preference category. The final rule
specifically sanctions use of random choice procedures for selection
among applicants with the same preference status.
The rule provides that the HA must use one of two techniques to
select among applicants with the same preference status (federal,
ranking or local preference): (1) Date and time of application, or (2)
A drawing or other random choice technique. [Sec. 982.207(e)(1)] In all
cases, the selection process must be consistent with the preferences
required by federal law and regulation (both the federal preference
requirements, and the preference for elderly, disabled or displaced
over other singles). [Sec. 982.207(e)(2)] Whatever the process for
selection of applicants, the HA must use procedures which provide a
clear audit trail, that permits verification that each applicant has
been selected in accordance with the method specified in the
administrative plan. [Sec. 982.207(e)(3)]
Findings and Certifications
Impact on the Economy
This rule does not constitute a ``major rule'' as that term is
defined in Section 1(b) of Executive Order 12291, Regulatory Planning
Process. Analysis of the rule indicates that it does not: (1) Have an
annual effect on the economy of $100 million or more; (2) cause a major
increase in costs or prices for consumers, individual industries,
Federal, State or local government agencies or geographic regions; or
(3) have a significant adverse effect on competition, employment,
investment, productivity, innovation or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic or export markets.
Impact on the Environment
A Finding of No Significant Impact with respect to the environment
was made in connection with the proposed rule in accordance with HUD
regulations at 24 CFR part 50 that implement section 102(2)(C) of the
National Environmental Policy Act of 1969, 42 U.S.C. 4332. The Finding
of No Significant Impact is available for public inspection and copying
during regular business hours (7:30 a.m. to 5:30 p.m.) in the Office of
the Rules Docket Clerk, room 10276, 451 Seventh Street, SW, Washington,
DC 20410-0500.
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 rule have impact on States or their political
subdivisions only to the extent required by the statute being
implemented. The rule specifies to what extent preferences for
admission of particular categories of applicants that are established
by the local housing agency, in accordance with a statutorily-
prescribed hearing procedure, may be used to admit participants. The
only guidelines stated for the local agency's discretion are those
required by the statute: the preferences are to respond to local
housing needs and priorities. Since the rule merely carries out a
statutory mandate and does not create any new significant requirements,
it is not subject to review under the Executive Order.
Impact on the Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus is not subject to review under the Order.
The rule carries out the mandate of federal statute with respect to
admission preferences.
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule will not have a significant
impact on a substantial number of small entities, because it does not
place major burdens on housing authorities or housing owners.
Regulatory Agenda
This rule was listed as sequence number 1691 under the Office of
the Assistant Secretary for Public and Indian Housing in the
Department's Semiannual Regulatory Agenda published on April 25, 1994
(59 FR 20424, 20471) in accordance with Executive Order 12866 and the
Regulatory Flexibility Act.
Regulatory Review
This rule was reviewed by the Office of Management and Budget under
Executive Order 12866, Regulatory Planning and Review. Any changes made
to the rule as a result of that review are clearly 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 St. SW.,
Washington, DC 20410.
List of Subjects
24 CFR Part 813
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements, Utilities.
24 CFR Part 882
Grant programs--housing and community development, Homeless, Lead
poisoning, Manufactured homes, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 887
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 982
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
Accordingly, chapters VIII and IX of title 24 of the Code of
Federal Regulations are amended as follows:
PART 813--DEFINITION OF INCOME, INCOME LIMITS, RENT AND
REEXAMINATION OF FAMILY INCOME FOR THE SECTION 8 HOUSING ASSISTANCE
PAYMENTS PROGRAMS AND RELATED PROGRAMS
1. The authority citation for part 813 is revised to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 1437n, and 3535(d).
Sec. 813.104 [Amended]
2. In Sec. 813.104, paragraph (b)(2) is removed, and paragraph
(b)(3) is redesignated as paragraph (b)(2).
Sec. 813.105 [Amended]
3. Section 813.105 is amended as follows:
a. In the first sentence of paragraph (a) introductory text, the
words ``five percent'' are removed and the words ``fifteen percent''
are added in their place.
b. Paragraph (c) is removed and reserved.
c. Paragraphs (e)(2) and (e)(4) are removed, and paragraph (e)(3)
is redesignated as paragraph (e)(2).
PART 882--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--EXISTING
HOUSING
4. The authority citation for part 882 is revised to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
5. In Sec. 882.103, the introductory text of Sec. 882.103 is
removed, and paragraph (b) is revised to read as follows:
Sec. 882.103 ``Finders-keepers'' policy.
* * * * *
(b) The PHA may not, either in the provision of assistance to any
Family in finding a unit or by any other action, directly or indirectly
reduce any Family's opportunity to choose among the available units in
the housing market.
* * * * *
6. In Sec. 882.116, paragraph (c) is revised to read as follows:
Sec. 882.116 Responsibilities of the PHA.
* * * * *
(c) Receipt and review of applications for participation; selection
of applicants; verification of family income and other factors relating
to eligibility and amount of assistance; and maintenance of a waiting
list;
* * * * *
Sec. 882.207 [Removed and reserved]
7. Section 882.207 is removed and reserved.
8. In Sec. 882.209, paragraph (a) is revised to read as follows:
Sec. 882.209 Selection and participation.
(a) Selection for participation. For provisions on selection of
participants for the Section 8 certificate and voucher programs, see
Part 982, Subpart E of this title.
* * * * *
Sec. 882.216 [Amended]
9. In Sec. 882.216, paragraph (a)(4) is removed.
Sec. 882.219 [Removed and reserved]
10. Section 882.219 is removed and reserved.
11. In Sec. 882.335, paragraph (a)(2)(i) is revised to read as
follows:
Sec. 882.335 Special requirements for related lease shared housing.
(a) * * *
(2) * * *
(i) The PHA must require an applicant Family that is issued a
Certificate on the basis of its willingness to share a unit with a
particular Family to use the Certificate for occupancy of a unit with
that Family under a Contract for Related Lease Shared Housing. However,
if the Family later wants to move to another dwelling unit with
continued participation in the PHA's program, the Family may select a
dwelling unit in any area where the PHA is not legally barred from
entering into Contracts.
* * * * *
12. In Sec. 882.701, paragraph (c) is revised to read as follows:
Sec. 882.701 Purpose and applicability.
* * * * *
(c) Except as otherwise expressly modified or excluded by this
subpart G, project-based assistance under this subpart G is subject to
all provisions of subparts A and B of part 882, and of part 982 of this
title.
* * * * *
13. In Sec. 882.753, paragraph (a) is revised to read as follows:
Sec. 882.753 Family participation.
* * * * *
(a) Participation. For purposes of this subpart G, a Family becomes
a participant on the effective date of the first lease with the owner
(first date of initial lease term).
* * * * *
PART 887--HOUSING VOUCHERS
14. The authority citation for part 887 is revised to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
Sec. 887.5 [Amended]
15. Section 887.5 is amended by removing paragraph (c).
16. In Sec. 887.59, paragraphs (c) (1) and (d) are revised to read
as follows:
Sec. 887.59 Equal opportunity housing plan.
* * * * *
(c) * * *
(1) Outreach and public notice to eligible families;
* * * * *
(d) The plan must include any special rules for use of HUD-targeted
housing vouchers.
* * * * *
Sec. 887.105 [Amended]
17. Section 887.105 is amended as follows:
a. By removing from paragraph (b)(1) the phrase ``(see
Sec. 887.107)''.
b. By removing from paragraph (b)(2) the phrase ``in accordance
with Sec. 887.157''.
Sec. 887.107 [Removed and reserved]
18. Section 887.107 is removed and reserved.
19. In Part 887, the title of Subpart D is revised to read as
follows:
``Subpart D--Issuing Housing Vouchers''
20. In Subpart D of Part 887, Sec. 887.151 is revised to read as
follows:
Sec. 887.151 Selection for participation.
For provisions on selection of participants for the Section 8
certificate and voucher programs, see Part 982, Subpart E of this
title.
Secs. 887.152--887.157 [Removed and reserved]
21. In Subpart D of Part 887, Secs. 887.153, 887.155, and 887.157
are removed and reserved.
22. In Sec. 887.565, paragraph (c) is revised to read as follows:
Sec. 887.565 Portability: responsibilities of the receiving PHA.
* * * * *
(c) The receiving PHA must recertify the family's income initially
and at least annually thereafter for purposes of determining the
housing assistance payments.
* * * * *
23-24. Part 982, consisting of Secs. 982.1 through 982.213, is
added to chapter IX to read as follows:
PART 982--SECTION 8 TENANT-BASED ASSISTANCE: UNIFIED RULE FOR
TENANT-BASED ASSISTANCE UNDER THE SECTION 8 RENTAL CERTIFICATE
PROGRAM AND THE SECTION 8 RENTAL VOUCHER PROGRAM
Subpart A--General Information
Sec.
982.1 General program description.
982.2 Applicability.
982.3 Definitions.
Subparts B-D--[Reserved]
Subpart E--Admission to Tenant-Based Program
982.201 Eligibility.
982.202 How applicants are selected: General requirements.
982.203 Special admission (non-waiting list): Assistance targeted
by HUD.
982.204 Waiting list: Administration of waiting list.
982.205 Waiting list: Different programs.
982.206 Waiting list: Opening and closing; public notice.
982.207 Waiting list: Use of preferences.
982.208 Waiting list: Residency preference.
982.209 Waiting list: How applicant qualifies for local preference.
982.210 Waiting list: How applicant qualifies for federal
preference.
982.211 Federal preference: Involuntary displacement.
982.212 Federal preference: Substandard housing.
982.213 Federal preference: Rent burden.
Authority: 42 U.S.C. 1437f and 3535(d).
Subpart A--General Information
Sec. 982.1 General program description.
In the HUD rental voucher program and the HUD rental certificate
program, a rent subsidy is paid to help eligible families afford rent
for decent, safe, and sanitary housing. Both programs are administered
by State, local governmental or tribal bodies called housing agencies
(HAs). HUD provides funds to an HA for rent subsidy on behalf of
eligible families. HUD also provides funds for HA administration of the
programs.
Sec. 982.2 Applicability.
Part 982 is a unified statement of requirements for admission to
the tenant-based housing assistance programs under Section 8 of the
United States Housing Act of 1937 (42 U.S.C. 1437f). The tenant-based
programs are the Section 8 tenant-based rental certificate program and
the Section 8 rental voucher program.
Sec. 982.3 Definitions.
Admission. The effective date of the first HAP contract for a
family (first day of initial lease term) in a tenant-based program.
This is the point when the family becomes a participant in the program.
Annual income. Defined in 24 CFR 813.106.
Applicant (or applicant family). A family that has applied for
admission to a program, but is not yet a participant in the program.
Certificate. A document issued by an HA to a family selected for
admission to the rental certificate program. The certificate describes
the program, and the procedures for HA approval of a unit selected by
the family. The certificate also describes the obligations of the
family under the program.
Certificate or voucher holder. A family holding a voucher or
certificate with unexpired search time.
Certificate program. Rental certificate program.
Continuously assisted. An applicant is continuously assisted under
the 1937 Housing Act if the family is already receiving assistance
under any 1937 Housing Act program when the family is admitted to the
certificate or voucher program.
Disabled person. A person who is any of the following:
(1) A person who has a disability as defined in section 223 of the
Social Security Act. (42 U.S.C. 423)
(2) A person who has a physical, mental, or emotional impairment
that:
(i) Is expected to be of long-continued and indefinite duration;
(ii) Substantially impedes his or her ability to live
independently; and
(iii) Is of such a nature that ability to live independently could
be improved by more suitable housing conditions.
(3) A person who has a developmental disability as defined in
section 102(7) of the Developmental Disabilities Assistance and Bill of
Rights Act (42 U.S.C. 6001(7)).
Displaced person. A person displaced by governmental action, or a
person whose dwelling has been extensively damaged or destroyed as a
result of a disaster declared or otherwise formally recognized under
federal disaster relief laws.
Drug-related criminal activity. The illegal manufacture, sale,
distribution, use, or possession with intent to manufacture, sell,
distribute or use, of a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)).
Elderly person. A person who is at least 62 years of age.
EO plan. Equal opportunity housing plan. The EO plan establishes HA
policies for implementing civil rights requirements.
Fair Market Rent. FMR. Defined in 24 CFR 882.102.
Family. Defined in 24 CFR 812.2. Family composition is discussed at
Sec. 982.201(c) of this chapter.
Family unit size. The appropriate number of bedrooms for a family.
Family unit size is determined by the HA under the HA occupancy
standards.
Federal preference. A preference under federal law for admission of
applicant families that are any of the following:
(1) Involuntarily displaced.
(2) Living in substandard housing (including families that are
homeless or living in a shelter for the homeless).
(3) Paying more than 50 percent of family income for rent.
Federal preference holder. An applicant that qualifies for a
federal preference.
FMR. Fair market rent.
HA. Housing Agency.
HAP contract. Housing assistance payments contract.
Housing agency (HA). A State, county, municipality or other
governmental entity or public body authorized to administer the
program. The term ``HA'' includes an Indian housing authority (IHA).
(``PHA'' and ``HA'' mean the same thing.)
HUD. The U.S. Department of Housing and Urban Development.
Indian housing authority (IHA). A housing agency established
either:
(1) By exercise of the power of self-government of an Indian Tribe,
independent of State law; or
(2) By operation of State law providing specifically for housing
authorities for Indians.
Live-in aide. A person who resides with an elderly person or
disabled person and who:
(1) Is determined to be essential to the care and well-being of the
person.
(2) Is not obligated for the support of the person.
(3) Would not be living in the unit except to provide necessary
supportive services.
Local preference. A preference used by the HA to select among
applicant families without regard to their federal preference status.
Local preference limit. Ten percent of total annual waiting list
admissions to the HA's tenant-based certificate and voucher programs.
The local preference limit is used to select among applicants without
regard to their federal preference status.
Low-income family. A family whose annual income does not exceed 80
percent of the median income for the area, as determined by HUD, with
adjustments for smaller and larger families. For admission to the
certificate program, HUD may establish income limits higher or lower
than 80 percent of the median income for the area on the basis of its
finding that such variations are necessary because of the prevailing
levels of construction costs or unusually high or low family incomes.
1937 Housing Act. The United States Housing Act of 1937 (42 U.S.C.
1437 et seq.). The HUD tenant-based programs are authorized by Section
8 of the 1937 Housing Act (42 U.S.C. 1437f).
1937 Housing Act program. Any of the following programs:
(1) The public housing program or Indian housing program.
(2) Any program assisted under Section 8 of the 1937 Act (42 U.S.C.
1437f) (including assistance under a Section 8 tenant-based or project-
based program).
(i) The Section 23 leased housing program.
(ii) The Section 23 housing assistance payments program. (``Section
23'' means Section 23 of the United States Housing Act of 1937 prior to
enactment of the Housing and Community Development Act of 1974.)
Occupancy standards. Standards established by an HA to determine
the appropriate number of bedrooms for families of different sizes and
compositions. See definition of ``family unit size''.
Participant. A family that has been admitted to the HA's
certificate program or voucher program. The family becomes a
participant on the effective date of the first HAP contract executed by
the HA for the family (first day of initial lease term).
PHA. Public housing agency. See definition of ``HA''. (``PHA'' and
``HA'' mean the same thing.)
Program. The tenant-based certificate program or voucher program.
Public housing agency (PHA). A State, county, municipality or other
governmental entity or public body authorized to administer the
programs. The term ``PHA'' includes an Indian housing authority (IHA).
(``PHA'' and ``HA'' mean the same thing. In this rule, a ``PHA'' is
referred to as a ``housing agency'' (HA)).
Ranking preference. A preference used by the HA to select among
applicant families that qualify for federal preference.
Rental certificate. Certificate.
Rental certificate program. Certificate program.
Rental voucher. Voucher.
Rental voucher program. Voucher program.
Residency preference. An HA preference for admission of families
that reside anywhere in a specified area, including families with a
member who works or has been hired to work in the area (``residency
preference area'').
Residency preference area. The specified area where families must
reside to qualify for a residency preference.
Special admission. Admission of an applicant that is not on the HA
waiting list, or without considering the applicant's waiting list
position.
Unit. Dwelling unit.
United States Housing Act of 1937 (1937 Housing Act). The basic law
that authorizes the public and Indian housing programs, and the Section
8 programs. (42 U.S.C. 1437 et seq.)
Very low-income family. A family whose annual income does not
exceed 50 percent of the median income for the area, as determined by
HUD, with adjustments for smaller and larger families. HUD may
establish very low-income limits higher or lower than 50 percent of the
median income for the area on the basis of its finding that such
variations are necessary because of unusually high or low family
incomes.
Voucher (rental voucher). A document issued by an HA to a family
selected for participation in the rental voucher program. The voucher
describes the program, and the procedures for HA approval of a unit
selected by the family. The voucher also states the obligations of the
family under the program.
Voucher program. Rental voucher program.
Waiting list admission. An admission from the HA waiting list.
Subparts B-D--[Reserved]
Subpart E--Admission to Tenant-Based Program
Sec. 982.201 Eligibility.
(a) When applicant is eligible: general. The HA may only admit an
eligible family to a program. To be eligible, the applicant must be a
``family'', and must be income-eligible.
(b) Income.
(1) To be income eligible, the family must be either:
(i) A ``very low-income'' family; or
(ii) A ``low-income'' family in any of the following categories:
(A) A low-income family that is ``continuously assisted'' under the
1937 Housing Act.
(B) A low-income family physically displaced by rental
rehabilitation activity under 24 CFR part 511.
(C) A low-income non-purchasing family residing in a HOPE 1 (HOPE
for Public and Indian Housing Homeownership) or HOPE 2 (HOPE for
Homeownership of Multifamily Units) project.
(D) A low-income non-purchasing family residing in a project
subject to a homeownership program under 24 CFR 248.173.
(E) A low-income family displaced as a result of the prepayment of
a mortgage or voluntary termination of a mortgage insurance contract
under 24 CFR 248.165.
(F) For the certificate program only, a low-income family residing
in a HUD-owned multifamily rental housing project when HUD sells,
forecloses or demolishes the project.
(2) The HA determines whether the family is income-eligible by
comparing the family's annual income (gross income) with the HUD-
established very low-income limit or low-income limit for the area. The
applicable income limit for issuance of a certificate or voucher when a
family is selected for the program is the highest income limit (for the
family unit size) for areas in the HA jurisdiction. The applicable
income limit for admission to the program is the income limit for the
area where the family is initially assisted in the program. The family
may only use the certificate or voucher to rent a unit in an area where
the family is income eligible at admission to the program.
(c) Family composition. (1) A ``family'' may be a single person or
a group of persons.
(2) A ``family'' includes a family with a child or children.
(3) A group of persons consisting of two or more elderly persons or
disabled persons living together, or one or more elderly or disabled
persons living with one or more live-in aides is a family. The HA
determines if any other group of persons qualifies as a ``family''.
(4) A single person family may be:
(i) An elderly person.
(ii) A displaced person.
(iii) A disabled person.
(iv) Any other single person.
(5) A child who is temporarily away from the home because of
placement in foster care is considered a member of the family.
(d) Continuously assisted. (1) An applicant is continuously
assisted under the 1937 Housing Act if the family is already receiving
assistance under any 1937 Housing Act program when the family is
admitted to the certificate or voucher program.
(2) The HA must establish policies concerning whether and to what
extent a brief interruption between assistance under one of these
programs and admission to the certificate or voucher program will be
considered to break continuity of assistance under the 1937 Housing
Act.
(e) When HA verifies that applicant is eligible. The HA must
receive information verifying that an applicant is eligible within the
period of 60 days before the HA issues a certificate or voucher to the
applicant.
(f) Decision to deny assistance.
(1) Notice to applicant. The HA must give an applicant prompt
written notice of a decision denying admission to the program
(including a decision that the applicant is not eligible, or denying
assistance for other reasons). The notice must give a brief statement
of the reasons for the decision. The notice must also state that the
applicant may request an informal review of the decision, and state how
to arrange for the informal review.
(2) Grounds for decision. For a discussion of the grounds for
denying assistance because of action or inaction by the applicant, see
Sec. 882.210 (certificate program) of this title and Sec. 887.403
(voucher program) of this title.
Sec. 982.202 How applicants are selected: General requirements.
(a) Waiting list and other admission. The HA may admit an applicant
for participation in the program either:
(1) As a special admission (see Sec. 982.203).
(2) As a waiting list admission (see Sec. 982.204 through
Sec. 982.210).
(b) Prohibited admission criteria.
(1) Family suitability for tenancy. The owner selects the tenant.
The owner decides whether the family is suitable for tenancy. The HA
decision whether to admit an applicant to the program may not be based
on an applicant's suitability for tenancy. The HA may deny assistance
to an applicant because of drug-related criminal activity or violent
criminal activity by family members. (See Sec. 882.210(b) (certificate
program) of this title and Sec. 887.403(b) (voucher program) of this
title.)
(2) Where family lives. Admission to the program may not be based
on where the family lives before admission to the program. However, the
HA may target assistance for families who live in public housing or
other federally assisted housing.
(3) Where family will live. Admission to the program may not be
based on where the family will live with assistance under the program.
(4) Family characteristics.
(i) Admission to the program may not be based on:
(A) Discrimination because members of the family are unwed parents,
recipients of public assistance, or children born out of wedlock;
(B) Discrimination because a family includes children (familial
status discrimination);
(C) Discrimination because of age, race, color, religion, sex, or
national origin;
(D) Discrimination because of disability; or
(E) Whether a family decides to participate in a family self-
sufficiency program.
(ii) The HA may not adopt a preference for admission of higher
income families over families of lower income.
(c) Applicant status. An applicant does not have any right or
entitlement to be listed on the HA waiting list, to any particular
position on the waiting list, or to admission to the programs. The
preceding sentence does not affect or prejudice any right, independent
of this rule, to bring a judicial action challenging an HA violation of
a constitutional or statutory requirement.
(d) Admission policy. The HA must admit applicants for
participation in accordance with HUD regulations and other
requirements, and with policies stated in the HA administrative plan
and EO plan. The HA admission policy must state the system of admission
preferences that the HA uses to select applicants from the waiting
list, including any federal preference, ranking preference, local
preference and residency preference.
Sec. 982.203 Special admission (non-waiting list): Assistance targeted
by HUD.
(a) If HUD awards an HA program funding that is targeted for
families living in specified units:
(1) The HA must use the assistance for the families living in these
units.
(2) The HA may admit a family that is not on the HA waiting list,
or without considering the family's waiting list position. The HA must
maintain records showing that the family was admitted with HUD-targeted
assistance.
(b) The following are examples of types of program funding that may
be targeted for a family living in a specified unit:
(1) A family displaced because of demolition or disposition of a
public or Indian housing project;
(2) A family residing in a multifamily rental housing project when
HUD sells, forecloses or demolishes the project;
(3) For housing covered by the Low Income Housing Preservation and
Resident Homeownership Act of 1990 (41 U.S.C. 4101 et seq.):
(i) A non-purchasing family residing in a project subject to a
homeownership program (under 24 CFR 248.173); or
(ii) A family displaced because of mortgage prepayment or voluntary
termination of a mortgage insurance contract (as provided in 24 CFR
248.165);
(4) A family residing in a project covered by a project-based
Section 8 HAP contract at or near the end of the HAP contract term; and
(5) A non-purchasing family residing in a HOPE 1 or HOPE 2 project.
Sec. 982.204 Waiting list: Administration of waiting list.
(a) Admission from waiting list. Except for special admissions,
participants must be selected from the HA waiting list. The HA must
select participants from the waiting list in accordance with admission
policies in the HA administrative plan and EO plan.
(b) Organization of waiting list. The HA must maintain information
that permits the HA to select participants from the waiting list in
accordance with the HA admission policies. The waiting list must
contain the following information for each applicant listed:
(1) Applicant name;
(2) Family unit size (number of bedrooms for which family qualifies
under HA occupancy standards);
(3) Date and time of application;
(4) Qualification for federal preference;
(5) Qualification for any ranking preference or local preference;
and
(6) Racial or ethnic designation of the head of household.
(c) Removing applicant names from the waiting list.
(1) The HA administrative plan must state HA policy on when
applicant names may be removed from the waiting list. For example, the
policy may provide that the HA will remove names of applicants who do
not respond to HA requests for information or updates, or who have
refused offers of tenant-based assistance under both the certificate
program and the voucher program.
(2) The system for removing applicant names from the waiting list
may not violate the rights of a disabled person under HUD regulations
and requirements. For example, if an applicant's failure to respond to
HA requests for information or updates was caused by the applicant's
disability, the HA must provide reasonable accommodation to give the
applicant an opportunity to respond.
(d) Family size. (1) The order of admission from the waiting list
may not be based on family size, or on the family unit size for which
the family qualifies under the HA occupancy policy.
(2) If the HA does not have sufficient funds to subsidize the
family unit size of the family at the top of the waiting list, the HA
may not skip the top family to admit an applicant with a smaller family
unit size. Instead, the family at the top of the waiting list will be
admitted when sufficient funds are available.
(e) Funding for specified category of waiting list families. When
HUD awards an HA program funding for a specified category of families
on the waiting list, the HA must select applicant families in the
specified category.
(Approved by the Office of Management and Budget under OMB control
number 2577-0169.)
Sec. 982.205 Waiting list: Different programs.
(a) Tenant-based programs: Number of waiting lists.
(1) An HA may use a single waiting list for admission to its
tenant-based certificate and voucher programs, or may use separate
waiting lists for a county or municipality.
(2) An HA must use the same waiting list for admission to its
tenant-based certificate and voucher programs.
(b) Merger and cross-listing.
(1) Merged waiting list. An HA may merge the waiting list for
tenant-based assistance with the HA waiting list for admission to
another assisted housing program, including a federal or local program.
In admission from the merged waiting list, admission for each federal
program is subject to federal regulations and requirements for the
particular program.
(2) Non-merged waiting list: Cross-listing. If the HA decides not
to merge the waiting list for tenant-based assistance with the waiting
list for the HA's public or Indian housing program, project-based
certificate program or moderate rehabilitation program:
(i) If the HA's waiting list for tenant-based assistance is open
when an applicant is placed on the waiting list for the HA's public or
Indian housing program, project-based certificate program or moderate
rehabilitation program, the HA must offer to place the applicant on its
waiting list for tenant-based assistance.
(ii) If the HA's waiting list for its public or Indian housing
program, project-based certificate program or moderate rehabilitation
program is open when an applicant is placed on the waiting list for its
tenant-based program, and if the other program includes units suitable
for the applicant, the HA must offer to place the applicant on its
waiting list for the other program.
(c) Other housing assistance: Effect of application for, receipt or
refusal.
(1)(i) The HA may not take any of the following actions because an
applicant has applied for, received or refused other housing
assistance:
(A) Refuse to list the applicant on the HA waiting list for tenant-
based assistance;
(B) Deny any admission preference for which the applicant is
currently qualified; or
(C) Remove the applicant from the waiting list.
(ii) For this purpose, ``other housing assistance'' means a
federal, State or local housing subsidy, as determined by HUD,
including public or Indian housing. However, the HA may remove such
applicants from the waiting list in accordance with Sec. 982.204(c).
(2) If an applicant refuses offers of tenant-based assistance under
both the certificate program and the voucher program, the HA may remove
the applicant from the waiting list for tenant-based assistance.
(3) See Sec. 982.210(c)(4) for provisions concerning retention of
federal preference by an applicant that either:
(i) Receives assistance under the HOME program, or
(ii) Resides in the HA's public or Indian housing.
Sec. 982.206 Waiting list: Opening and closing; public notice.
(a) Public notice. (1) When the HA opens a waiting list, the HA
must give public notice that families may apply for tenant-based
assistance. The public notice must state where and when to apply.
(2) The HA must give the public notice by publication in a local
newspaper of general circulation, and also by minority media and other
suitable means described in the EO plan. The notice must comply with
the HUD-approved EO plan and with HUD fair housing requirements.
(3) The public notice must state any limitations on who may apply
for available slots in the program.
(b) Criteria defining what families may apply.
(1) The HA may adopt criteria defining what families may apply for
assistance under a public notice.
Example A
The HA decides that applications will only be accepted from
families that qualify for federal preference, or from homeless federal
preference families.
Example B
In admission to the program, the HA must give preference to elderly
families, displaced families and displaced persons over other single
persons (24 CFR 812.3). The HA decides that applications from other
single persons will not be accepted.
(2) If the waiting list is open, the HA must accept applications
from families for whom the list is open unless there is good cause for
not accepting the application (such as a denial of assistance because
of action or inaction by members of the family) for the grounds stated
in Sec. 882.210 (certificate program) of this title and Sec. 887.403
(voucher program) of this title).
(c) Closing waiting list. (1) If the HA determines that the
existing waiting list contains an adequate pool for use of available
program funding, the HA may stop accepting new applications, or may
accept only applications meeting criteria adopted by the HA.
(2) Even if the HA is not otherwise accepting additional
applications, the HA must accept applications from applicants who claim
a federal preference unless the HA determines that the waiting list
already contains an adequate pool of applicants who are likely to
qualify for a federal preference.
Sec. 982.207 Waiting list: Use of preferences.
(a) Types of preferences. (1) There are three types of admission
preferences:
(i) ``Federal preferences.''
(ii) ``Ranking preferences.''
(iii) ``Local preferences''.
(2) Federal preference. (i) ``Federal preferences'' are required by
federal law. Under federal law, the HA must give preference for
admission of applicants that are:
(A) Involuntarily displaced;
(B) Living in substandard housing (including families that are
homeless or living in a shelter for the homeless); or
(C) Paying more than 50 percent of family income for rent.
(ii) The federal preference requirements determine how many
selected applicants must be families with a federal preference, and how
many selected applicants may be families without a federal preference.
(3) Other preferences. (i) In addition to the federal preferences,
the HA may establish ``ranking preferences'' or ``local preferences''
to meet local needs and priorities.
(ii) ``Ranking preferences'' are used in selecting among applicants
that qualify for federal preference.
(iii) ``Local preferences'' are used in selecting among applicants
without regard to their federal preference status.
(iv) The HA preference system may limit the number of applicants
that may qualify for any ranking preference or local preference.
(b) Limit on local preference admission. (1) ``Local preference
limit'' means ten percent of total annual waiting list admissions to an
HA's tenant-based certificate and voucher programs. In any year, the
number of families given preference in admission to the HA tenant-based
certificate program and voucher program pursuant to a local preference
over families with a federal preference may not exceed the local
preference limit.
(2) The local preference limit only applies to admission of an
applicant from the HA waiting list. A special admission is not counted
against the local preference limit.
(3) The local preference limit does not apply when an applicant is
received in an HA program under portability procedures. The admission
of a portability family by a receiving HA does not count against the
receiving HA local preference limit. The admission of such a family
(not qualified for federal preference) counts against the local
preference limit of the initial HA.
(c) Use of preferences in admission. (1) In selecting applicants,
the HA determines if an applicant qualifies for a federal preference,
ranking preference or local preference.
(2) Ranking preference governs selection among applicants that
qualify for a federal preference.
(3) Local preference governs selection among applicants that do not
qualify for a federal preference.
(d) Singles preference: Admission of elderly, disabled or displaced
over other singles. In selecting applicants, the HA must give
preference to:
(1) A family (with or without federal preference):
(i) Whose single member is a displaced person; or,
(ii) Whose head or spouse or single member is an elderly person or
a disabled person, over
(2) A single person (with or without federal preference) who is not
elderly, disabled or displaced.
(e) Methods for selection. (1) The HA must use the following to
select among applicants on the waiting list with the same preference
status:
(i) Date and time of application, or
(ii) A drawing or other random choice technique.
(2) The method for selecting applicants from preference categories
must be consistent with requirements governing federal preference, and
the singles preference (described in paragraph (d) of this section).
(3) The method for selecting applicants from preference categories
must leave a clear audit trail that can be used to verify that each
applicant has been selected in accordance with the method specified in
the administrative plan.
(f) Prohibition of preference if applicant was evicted for drug-
related criminal activity. The HA may not give a preference to an
applicant (federal preference, ranking preference or local preference)
if any member of the family is a person who was evicted during the past
three years because of drug-related criminal activity from housing
assisted under a 1937 Housing Act program. However, the HA may give an
admission preference in any of the following cases:
(1) If the HA determines that the evicted person has successfully
completed a rehabilitation program approved by the HA.
(2) If the HA determines that the evicted person clearly did not
participate in or know about the drug-related criminal activity.
(3) If the HA determines that the evicted person no longer
participates in any drug-related criminal activity.
(g) Fair Housing requirements. (1) Any admission preferences that
are used by an HA must be established and administered in accordance
with the following authorities, and HUD implementing regulations:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d);
(ii) The Fair Housing Act (42 U.S.C. 3601-3619);
(iii) Executive Order 11063 on Equal Opportunity in Housing (27 FR
11527 (3 CFR, 1959-1963 Comp., p. 652);
(iv) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794);
(v) The Age Discrimination Act of 1975 (42 U.S.C. 6101-6107); and
(vi) The Americans with Disabilities Act (42 U.S.C. 12101-12213).
(2) Preferences must be consistent with HUD's affirmative fair
housing objectives. The HA may not discriminate against families or
family members on the basis of race, color, religion, sex, national
origin, age, familial status or disability.
(h) Informing applicants about admission preferences. The HA must
inform applicants about available preferences. The HA must give
applicants an opportunity to show that they qualify for available
preferences (federal preference, ranking preference or local
preference).
Sec. 982.208 Waiting list: Residency preference.
(a) ``Residency preference'' is a preference for admission of
families that reside anywhere in a specified area, including families
with a member who works or has been hired to work in the area. The area
where families must reside to qualify for the preference is called a
``residency preference area''.
(b) Any residency preference must be approved by HUD.
(c) If approved by HUD, the HA may adopt a residency preference
that establishes a county or municipality as a residency preference
area. An HA may not adopt a residency preference for an area smaller
than a county or municipality.
(d) A residency preference must apply to families with a member who
works or has been hired to work anywhere in a residency preference
area. In applying the residency preference, such families must be
treated like families that reside in the residency preference area.
(e) A residency preference may not be based on how long the
applicant has resided in or worked in the HA jurisdiction or residency
preference area.
(f) The HA may use a HUD-approved residency preference as a ranking
or local preference.
Sec. 982.209 Waiting list: How applicant qualifies for local
preference.
(a) Local preference: Use and purpose. ``Local preferences'' are
used to select among applicants that do not qualify for a federal
preference. The HA may adopt a system of local preferences to respond
to local housing needs and priorities.
(b) Procedure. Local preferences may only be adopted or amended
after the HA has conducted a public hearing. The HA may only use local
preferences in selection for admission if the HA has conducted the
required public hearing.
Sec. 982.210 Waiting list: How applicant qualifies for federal
preference.
(a) Applicable definitions. Unless HUD has reviewed and approved
alternative definitions, the HA must use the definitions of the
following terms in this part:
(1) ``Standard, permanent replacement housing''.
(2) ``Involuntary displacement''.
(3) ``Substandard housing''.
(4) ``Homeless family''.
(5) ``Family income''.
(6) ``Rent''.
(b) Ranking preferences: Selection among federal preference
holders. (1) The HA admission policy may provide for use of ranking
preferences to select among applicants that qualify for federal
preference.
(2) The HA may limit the number of applicants who may qualify for
any ranking preference.
(3) The HA ranking preferences may determine the relative weight of
the federal preferences through means such as:
(i) Aggregating the federal preferences (such as, two federal
preferences outweigh one and three outweigh two).
(ii) Ranking the federal preferences. For example, the HA admission
policy may provide that an applicant who lives in substandard housing
has preference over an applicant who qualifies for a rent burden
preference (paying more than 50 percent of income for rent).
(iii) Ranking the definitional elements of a federal preference.
For example, the HA admission policy may provide that an applicant
living in substandard housing that is dilapidated or has been declared
unfit for habitation by an agency or unit of government has preference
over an applicant whose housing is substandard only because the housing
does not have a usable bathtub or shower inside the unit for the
exclusive use of the family.
(iv) The HA admission policy may give ranking preference for
working families. However, the preference may not violate the
prohibitions against discrimination on the basis of age or disability.
An applicant must be given the benefit of the preference for working
families if the head and spouse, or sole member, are age 62 or older or
are receiving social security disability, supplemental security income
disability benefits, or any other payments based on an individual's
inability to work. If an HA adopts a ranking preference for working
families, the admission policy may not give greater preference to an
applicant based on the amount of employment income.
(4) The HA admission policy may give ranking preference for
graduates of, or active participants in, educational and training
programs that are designed to prepare individuals for the job market.
(c) Qualifying for a federal preference. (1) Basis of federal
preference.
(i) Displacement. An applicant qualifies for federal preference if:
(A) The applicant has been involuntarily displaced and is not
living in standard, permanent replacement housing; or
(B) The applicant will be involuntarily displaced within no more
than six months from the date of preference status certification by the
family or verification by the HA.
(ii) Substandard housing. An applicant qualifies for a federal
preference if the applicant is living in substandard housing. An
applicant that is homeless or living in a shelter for the homeless is
considered as living in substandard housing.
(iii) Rent burden. An applicant qualifies for a federal preference
if the applicant is paying more than 50 percent of family income for
rent.
(2) Certification of preference. An applicant may claim
qualification for a federal preference by certifying to the HA that the
family qualifies for federal preference. The HA must accept this
certification, unless the HA verifies that the applicant is not
qualified for federal preference.
(3) Verification of preference.
(i) Before an applicant is admitted on the basis of a federal
preference, the applicant must provide information needed by the HA to
verify that the applicant qualifies for a federal preference because of
the applicant's current status. The applicant's current status must be
determined without regard to whether there has been a change in the
applicant's qualification for a federal preference between the
certification and selection for admission, including a change from one
federal preference category to another.
(ii) The HA may adopt its own verification procedures.
(iii) Once the HA has verified an applicant's qualification for a
federal preference, the HA need not require the applicant to provide
information needed by the HA to verify such qualification again unless:
(A) The HA determines reverification is desirable because a long
time has passed since verification; or
(B) The HA has reasonable grounds to believe that the applicant no
longer qualifies for a federal preference.
(4) Retention of preference. (i) If a Section 8 applicant is
currently receiving tenant-based assistance under the HOME program (24
CFR part 92), the HA determines whether the applicant qualifies for
Section 8 federal preference based on the situation of the applicant at
the time the applicant began to receive tenant-based assistance under
the HOME program.
(ii) If an applicant seeking admission to an HA's tenant-based
program currently resides in public or Indian housing of the same HA,
and was on the HA's tenant-based program waiting list when admitted to
the HA's public or Indian housing on or after April 26, 1993, the HA
determines whether the applicant qualifies for Section 8 federal
preference based on the situation of the applicant at the time the
applicant was admitted to the HA's public or Indian housing program
(beginning of initial public housing lease).
(d) Notice and opportunity for a meeting where federal preference
is denied. (1) If the HA determines that an applicant does not qualify
for a federal preference, ranking preference, or local preference
claimed by the applicant, the HA must promptly give the applicant
written notice of the determination. The notice must contain a brief
statement of the reasons for the determination, and state that the
applicant has the right to meet with an HA representative to review the
determination. The meeting may be conducted by any person or persons
designated by the HA, who may be an officer or employee of the HA,
including the person who made or reviewed the determination or a
subordinate employee.
(2) The applicant may exercise other rights if the applicant
believes that the applicant has been discriminated against on the basis
of race, color, religion, sex, national origin, age, disability or
familial status.
Sec. 982.211 Federal preference: Involuntary displacement.
(a) How applicant qualifies for displacement preference.
(1) An applicant qualifies for a federal preference on the basis of
involuntary displacement if either of the following apply:
(i) The applicant has been involuntarily displaced and is not
living in standard, permanent replacement housing.
(ii) The applicant will be involuntarily displaced within no more
than six months from the date of preference status certification by the
family or verification by the HA.
(2)(i) ``Standard, permanent replacement housing'' is housing:
(A) That is decent, safe, and sanitary;
(B) That is adequate for the family size; and
(C) That the family is occupying pursuant to a lease or occupancy
agreement.
(ii) ``Standard, permanent replacement housing'' does not include:
(A) Transient facilities, such as motels, hotels, or temporary
shelters for victims of domestic violence or homeless families; or
(B) In the case of domestic violence, the housing unit in which the
applicant and the applicant's spouse or other member of the household
who engages in such violence live.
(b) Meaning of involuntary displacement. An applicant is or will be
involuntarily displaced if the applicant has vacated or will have to
vacate the unit where the applicant lives because of one or more of the
following:
(1) Displacement by disaster. An applicant's unit is uninhabitable
because of a disaster, such as a fire or flood.
(2) Displacement by government action. Activity carried on by an
agency of the United States or by any State or local governmental body
or agency in connection with code enforcement or a public improvement
or development program.
(3) Displacement by action of housing owner. (i) Action by a
housing owner forces the applicant to vacate its unit.
(ii) An applicant does not qualify as involuntarily displaced
because action by a housing owner forces the applicant to vacate its
unit unless:
(A) The applicant cannot control or prevent the owner's action;
(B) The owner action occurs although the applicant met all
previously imposed conditions of occupancy; and
(C) The action taken by the owner is other than a rent increase.
(iii) To qualify as involuntarily displaced because action by a
housing owner forces the applicant to vacate its unit, reasons for an
applicant's having to vacate a housing unit include, but are not
limited to, conversion of an applicant's housing unit to non-rental or
non-residential use; closing of an applicant's housing unit for
rehabilitation or for any other reason; notice to an applicant that the
applicant must vacate a unit because the owner wants the unit for the
owner's personal or family use or occupancy; sale of a housing unit in
which an applicant resides under an agreement that the unit must be
vacant when possession is transferred; or any other legally authorized
act that results or will result in the withdrawal by the owner of the
unit or structure from the rental market.
(iv) Such reasons do not include the vacating of a unit by a tenant
as a result of actions taken by the owner because the tenant refuses:
(A) To comply with HUD program policies and procedures for the
occupancy of under-occupied or overcrowded units; or
(B) To accept a transfer to another housing unit in accordance with
a court decree or in accordance with policies and procedures under a
HUD-approved desegregation plan.
(4) Displacement by domestic violence. (i) An applicant is
involuntarily displaced if:
(A) The applicant has vacated a housing unit because of domestic
violence; or
(B) The applicant lives in a housing unit with a person who engages
in domestic violence.
(ii) ``Domestic violence'' means actual or threatened physical
violence directed against one or more members of the applicant family
by a spouse or other member of the applicant's household.
(iii) For an applicant to qualify as involuntarily displaced
because of domestic violence:
(A) The HA must determine that the domestic violence occurred
recently or is of a continuing nature; and
(B) The applicant must certify that the person who engaged in such
violence will not reside with the applicant family unless the HA has
given advance written approval. If the family is admitted, the HA may
deny or terminate assistance to the family for breach of this
certification.
(5) Displacement to avoid reprisals. (i) An applicant family is
involuntarily displaced if:
(A) Family members provided information on criminal activities to a
law enforcement agency, and
(B) Based on a threat assessment, the law enforcement agency
recommends rehousing the family to avoid or minimize a risk of violence
against family members as a reprisal for providing such information.
(ii) The HA may establish appropriate safeguards to conceal the
identity of families requiring protection against such reprisals.
(6) Displacement by hate crimes. (i) An applicant is involuntarily
displaced if:
(A) One or more members of the applicant's family have been the
victim of one or more hate crimes; and
(B) The applicant has vacated a housing unit because of such crime,
or the fear associated with such crime has destroyed the applicant's
peaceful enjoyment of the unit.
(ii) ``Hate crime'' means actual or threatened physical violence or
intimidation that is directed against a person or his or her property
and that is based on the person's race, color, religion, sex, national
origin, handicap, or familial status.
(iii) The HA must determine that the hate crime involved occurred
recently or is of a continuing nature.
(7) Displacement by inaccessibility of unit. An applicant is
involuntarily displaced if:
(i) A member of the family has a mobility or other impairment that
makes the person unable to use critical elements of the unit; and
(ii) The owner is not legally obligated to make changes to the unit
that would make critical elements accessible to the disabled person as
a reasonable accommodation.
(8) Displacement because of HUD disposition of multifamily project.
Involuntary displacement includes displacement because of disposition
of a multifamily rental housing project by HUD under Section 203 of the
Housing and Community Development Amendments of 1978.
Sec. 982.212 Federal preference: Substandard housing.
(a) When a unit is substandard. A unit is substandard if the unit:
(1) Is dilapidated;
(2) Does not have operable indoor plumbing;
(3) Does not have a usable flush toilet inside the unit for the
exclusive use of a family;
(4) Does not have a usable bathtub or shower inside the unit for
the exclusive use of a family;
(5) Does not have electricity, or has inadequate or unsafe
electrical service;
(6) Does not have a safe or adequate source of heat;
(7) Should, but does not, have a kitchen; or
(8) Has been declared unfit for habitation by an agency or unit or
government.
(b) Dilapidated unit. A housing unit is dilapidated if:
(1) The unit does not provide safe and adequate shelter, and in its
present condition endangers the health, safety, or well-being of a
family; or
(2) The unit has one or more critical defects, or a combination of
intermediate defects in sufficient number or extent to require
considerable repair or rebuilding. The defects may involve original
construction, or they may result from continued neglect or lack of
repair or from serious damage to the structure.
(c) Homeless family. (1) An applicant that is a homeless family is
considered to be living in substandard housing.
(2) A ``homeless family'' includes any person or family that:
(i) Lacks a fixed, regular, and adequate nighttime residence; and
also
(ii) Has a primary nighttime residence that is:
(A) A supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare hotels,
congregate shelters, and transitional housing);
(B) An institution that provides a temporary residence for persons
intended to be institutionalized; or
(C) A public or private place not designed for, or ordinarily used
as, a regular sleeping accommodation for human beings.
(3) A ``homeless family'' does not include any person imprisoned or
otherwise detained pursuant to an Act of the Congress or a State law.
(d) Status of SRO housing. In determining whether an individual
living in single room occupancy (SRO) housing qualifies for federal
preference, SRO housing is not considered substandard solely because
the unit does not contain sanitary or food preparation facilities.
Sec. 982.213 Federal preference: Rent burden.
(a) ``Rent burden preference'' means the federal preference for
admission of applicants that pay more than 50 percent of family income
for rent.
(b) For purposes of determining whether an applicant qualifies for
the rent burden preference:
(1) ``Family income'' means Monthly Income, as defined in 24 CFR
813.102.
(2) ``Rent'' means:
(i) The actual monthly amount due under a lease or occupancy
agreement between a family and the family's current landlord; and
(ii) For utilities purchased directly by tenants from utility
providers:
(A) The utility allowance for family-purchased utilities and
services that is used in the HA tenant-based program; or
(B) If the family chooses, the average monthly payments that the
family actually made for these utilities and services for the most
recent 12-month period or, if information is not obtainable for the
entire period, for an appropriate recent period.
(3) Amounts paid to or on behalf of a family under any energy
assistance program must be subtracted from the otherwise applicable
rental amount, to the extent that they are not included in the family's
income.
(4) For an applicant who owns a manufactured home, but who rents
the space upon which it is located, rent includes the monthly payment
to amortize the purchase price of the home, calculated in accordance
with HUD's requirements.
(5) For members of a cooperative, rent means the charges under the
occupancy agreement between the members and the cooperative.
(c) An applicant does not qualify for a rent burden preference if
either of the following is applicable:
(1) The applicant has been paying more than 50 percent of income
for rent for less than 90 days;
(2) The applicant is paying more than 50 percent of family income
to rent a unit because the applicant's housing assistance for occupancy
of the unit under any of the following programs has been terminated
because of the applicant's refusal to comply with applicable program
policies and procedures on the occupancy of underoccupied and
overcrowded units:
(i) The Section 8 programs or public and Indian housing programs
under the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.);
(ii) The rent supplement program under section 101 of the Housing
and Urban Development Act of 1965 (12 U.S.C. 1701s); or
(iii) Rental assistance payments under section 236(f)(2) of the
National Housing Act (12 U.S.C. 1715z-1).
Dated: June 24, 1994.
Joseph Shuldiner,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 94-16887 Filed 7-13-94; 8:45 am]
BILLING CODE 4210-33-P
