99-18801. One-Strike Screening and Eviction for Drug Abuse and Other Criminal Activity

[Federal Register Volume 64, Number 141 (Friday, July 23, 1999)]
[Proposed Rules]
[Pages 40262-40280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18801]

[[Page 40261]]

_______________________________________________________________________

Part X

Department of Housing and Urban Development

_______________________________________________________________________

24 CFR Part 5, et al.

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

Federal Register / Vol. 64, No. 141 / Friday, July 23, 1999 /
Proposed Rules

[[Page 40262]]

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 5, 200, 247, 880, 882, 884, 891, 960, 966, and 982

[Docket No. FR-4495-P-01]
RIN 2501-AC63

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

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule would amend the regulations for the public
housing and Section 8 assisted housing programs, and for other HUD
assisted housing programs, such as the Section 221 (d)(3) below market
interest rate (BMIR) program, Section 202 program for the elderly, and
Section 811 program for persons with disabilities, and Section 236
interest reduction program. All of these programs were affected by
recent statutory amendments. These amendments give Public Housing
Agencies (PHAs) and assisted housing owners the tools for adopting and
implementing fair, effective, and comprehensive policies for denying
admission to applicants who engage in illegal drug use or other
criminal activity and for evicting or terminating assistance of persons
who engage in such activity.

DATES: Comments Due Date: Comments on the proposed rule and the
proposed information collection requirements are due on or before
September 21, 1999.

ADDRESSES: Submit written comments regarding this proposed rule to the
Rules Docket Clerk, Office of General Counsel, Room 10276, Department
of Housing and Urban Development, 451 Seventh Street, SW, Washington,
DC 20410. Comments should refer to the above docket number and title. A
copy of each comment submitted will be available for public inspection
and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above
address. Facsimile (FAX) comments will not be accepted.

FOR FURTHER INFORMATION CONTACT: For Section 8 certificate, voucher,
and moderate rehabilitation programs--Gerald J. Benoit, Director, Real
Estate Performance and Housing Division, Office of Public and Indian
Housing, Department of Housing and Urban Development, Room 4210, 451
Seventh Street, SW, Washington, DC 20410; telephone (202) 708-0477. For
public housing `` Patricia Arnaudo, Senior Program Manager, Office of
Public and Assisted Housing Delivery, Department of Housing and Urban
Development, 451 Seventh Street, SW, Room 4224, Washington DC, 20410;
telephone (202) 708-0744 or the Public and Indian Housing Resource
Center at 1-800-955-2232.
For the Section 8 project-based programs `` Willie Spearmon,
Director, Office of Multifamily Business Products, Office of Housing,
Department of Housing and Urban Development, Room 6134, 451 Seventh
Street, SW, Washington, DC 20410; telephone (202) 708-3000.
Only the Public and Indian Housing Resource Center number is toll-
free. Persons with hearing or speech impairments may access these
numbers via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

President Clinton, in his 1996 State of the Union address, proposed
the ``one strike and you're out'' policy. The President challenged
local housing authorities and tenant associations to stop criminal gang
members and drug dealers who were destroying the lives of decent
tenants. In response to the President's ``One Strike'' mandate, HUD
expeditiously issued guidelines and procedures and conducted extensive
training for PHAs around the country. Public housing agencies,
localities, police departments and judges have all responded to the
President's call. Public housing communities are better, safer places
because of their efforts.
It is critical that assisted housing owners have the same
opportunities to fight criminal activity, so that residents in their
communities can also live in peace. This proposed rule provides for
that broadened authority and responsibility. The rule is intended to
give PHAs and assisted housing owners the tools for adopting and
implementing fair, effective, and comprehensive policies for both crime
prevention and enforcement. Crime prevention will be advanced by the
authority to screen out those who engage in illegal drug use or other
criminal activity, and enforcement will be advanced by the authority to
evict and terminate assistance for persons who participate in criminal
activity.
In 1996, the Housing Opportunity Program Extension Act (Pub. L.
104-120, 110 Stat. 834-846, approved March 28, 1996) (``the Extension
Act'') amended the United Stated Housing Act of 1937 (42 U.S.C. 1437a,
et seq.) (``the 1937 Act''). The Extension Act added significant crime
and security protections for public housing and section 8 residents. It
made an individual who has been evicted from public housing or any
Section 8 program for drug-related criminal activity ineligible for
admission to public housing and the section 8 programs for a three-year
period, beginning from the date of eviction. The evicted family becomes
eligible for re-admission, however, if the individual who engaged in
the activity has successfully completed a rehabilitation program
approved by the PHA or if the PHA determines that the circumstances
leading to the eviction no longer exist.
The Extension Act also required PHAs to establish standards that
prohibit occupancy in any public housing unit or participation in a
section 8 tenant-based program by any person the PHA determines to be
using a controlled substance, or whose pattern of illegal use of a
controlled substance or pattern of alcohol abuse would interfere with
the health, safety or right to peaceful enjoyment of the premises by
other residents of the development. In this connection, the Extension
Act authorized the PHA administering the program to determine whether
an applicant has been rehabilitated from drug or alcohol abuse. In
addition, the Extension Act provided PHAs the opportunity to access
criminal records for public housing applicants and residents.
HUD issued a variety of guidance on implementing the Extension Act
(PIH Notice 96-16, issued April 12, 1996 and PIH Notice 96-27, issued
May 15, 1996). HUD published proposed rules for the section 8 tenant-
based and moderate rehabilitation programs on March 31, 1997 (62 FR
15346) and for the public housing program on May 9, 1997 (62 FR 25728).
Sections 575-579 of the Quality Housing and Work Responsibility Act
of 1998 (Public Law 105-276, approved Oct. 21, 1998, 112 Stat. 2634-
2643) (``the Public Housing Reform Act'' or ``the 1998 Act'') revised
provisions of the 1937 Act (sections 6 and 16) and created other
statutory authority to expand crime and security provisions to most
federally assisted housing. Instead of issuing a final rule on the
admission and eviction provisions of the Extension Act, HUD is
publishing this new proposed rule on the provisions as they exist after
the revision to the drug abuse and criminal activity requirements made
by the Public Housing Reform Act.
The 1998 Act revised the prohibition on admitting families for
three years because of eviction from public housing or Section 8 units
for drug-related criminal activity to cover admissions to

[[Page 40263]]

(and evictions from) Section 202, Section 811, Section 221(d)(3) BMIR,
Section 236, and Section 514/515 rural housing projects. In addition,
the 1998 Act (section 578(a)) added the obligation for project owners--
including PHAs that administer public housing--to deny admission to sex
offenders who are subject to a lifetime registration requirement under
a State sex offenders' registration program. The FY 1999 appropriations
act (Section 428 of Public Law 105-276, 112 Stat. 2511) added a new
paragraph (f) to section 16 of the 1937 Act to bar persons convicted of
manufacturing or producing methamphetamine from public housing and
Section 8 assisted housing where the PHA determines who is admitted.
An additional crime and safety provision was added to the 1937 Act
by the Personal Responsibility and Work Opportunity Act of 1996 (Public
Law 104-193, approved August 22, 1996; 110 Stat. 2105, 2348). Section
903 of that Act amended the 1937 Act (42 U.S.C. 1437f(d)(1) and
1437d(l)) to add as a grounds for termination of tenancy in the public
housing and Section 8 assistance programs fleeing to avoid prosecution,
or custody or confinement after conviction, for a felony (or a high
misdemeanor in New Jersey). Violating a condition of probation or
parole imposed under Federal or State law is also grounds for
termination of tenancy under that provision. That provision also
created the obligation (in a new section 27 of the 1937 Act) for PHAs
to provide Federal, State or local law enforcement officials with
information concerning assistance recipients whom the officials are
pursuing for violating parole or fleeing to avoid prosecution.

II. Applicability

This proposed rule would implement the statutory provisions
described above. However, not all of the statutory provisions apply to
all of the programs covered by this rule. The chart below describes
which provisions apply to which programs. Until this rule is issued for
effect, the provisions of this rule are not effective. However, the
following provisions of the recent statutory amendments are already in
effect: (1) the drug treatment facility check provision of section
575(e) of the 1998 Act, which applies to public housing only, and (2)
the methamphetamine production provision of section 428 of the Fiscal
Year 1999 appropriation act. Both of these provisions were described as
immediately applicable in the Initial Guidance Notice on the 1998 Act,
published in the Federal Register on February 18, 1999 (64 FR 8192).
The safety and security provisions of the Extension Act remain in
effect, as described in PIH Notice 96-27.

BILLING CODE 4210-32-P

[[Page 40264]]

[GRAPHIC] [TIFF OMITTED] TP23JY99.007

[[Page 40265]]

[GRAPHIC] [TIFF OMITTED] TP23JY99.008

BILLING CODE 4210-32-C

[[Page 40266]]

III. Subjects This Rule Covers

A. Ineligibility of Persons Involved in Drug or Alcohol Abuse

The rule requires PHAs and owners of federally assisted housing to
develop standards that prohibit admission of any household with a
member who (1) the PHA or owner has determined is engaged in illegal
drug use; or (2) the PHA or owner has reasonable cause to believe is
engaged in illegal drug use or alcohol abuse (or pattern of abuse) that
may interfere with the health, safety or right to peaceful enjoyment of
other residents of the development. With respect to households already
participating in a federally assisted housing program, the rule
requires PHAs and owners to develop occupancy standards or lease
provisions that allow the PHAs and owners to terminate tenancy or
assistance of households with a member engaged in such conduct. The
1998 amendments of the 1996 Extension Act provisions on ineligibility
of illegal drug users and alcohol abusers confirm that a PHA or owner
may deny admission or terminate assistance for the whole household that
includes a person involved in the proscribed activity. With respect to
a PHA or owner's discretion to consider rehabilitation for a household
member with the offending substance abuse problem, the rule would
permit a PHA or owner to hold the whole household responsible for that
member's successful rehabilitation as a condition for continued
occupancy and avoidance of eviction.

B. Ineligibility of Persons Convicted of Producing Methamphetamine

Individuals convicted of manufacturing or producing methamphetamine
are ineligible for public housing, Section 8 tenant-based assistance,
and Section 8 project-based assistance administered by a PHA, in
accordance with section 428 of the HUD appropriations act for FY 1999
(amending section 16 of the 1937 Act). The restriction applies to
persons convicted of producing methamphetamine in a building or complex
assisted under the public housing or Section 8 programs. PHAs are
required by the statute and this rule (e.g., Secs. 966.4(f)(5)(i)(B),
982.310(c), 982.553(b)(1)(ii)) to establish standards that make these
persons ineligible for admission and require their immediate
termination of tenancy.

C. Termination of Tenancy of Fleeing Felons

Owners of public housing and Section 8 assisted housing are
authorized to terminate the tenancy of individuals who are fleeing to
avoid prosecution or to avoid custody or confinement after conviction
of a crime or attempt to commit a crime, as described above (e.g.,
Secs. 966.4(f)(5)(ii)(B) and 982.553(b)(2)(ii)). The crimes covered are
those that are felonies under the laws of the place from which the
individual flees (or, in the case of the State of New Jersey, a high
misdemeanor). In addition, the rule permits owners to terminate the
tenancy of individuals who violate a condition of probation or parole
imposed under Federal or State law. In order to implement this
provision, the proposed rule requires PHAs and Section 8 housing owners
to amend their leases to provide for termination under these
circumstances.

D. Criminal Records from Law Enforcement Agencies

PHA Access to Records
PHAs may access criminal conviction records from the National Crime
Information Center, police departments, and other law enforcement
agencies for purposes of applicant screening, lease enforcement, and
eviction. PHAs may access such records for adult applicants and tenants
of public housing and adult applicants and participants in the PHA's
Section 8 tenant-based programs. In addition, they may access records
in order to screen applicants or evaluate tenants for owners of
project-based Section 8 housing programs. In order to access an
applicant's or tenant's criminal conviction record, the PHA must
provide the law enforcement agency with a consent form signed by the
applicant or tenant.
Owners' Access to Records
Owners of project-based section 8 developments, including owners of
project-based certificate program and moderate rehabilitation program
developments, may request a PHA to obtain criminal records and perform
determinations for the owner regarding screening applicants, lease
enforcement, or eviction for developments located in the PHA's
jurisdiction. The owner must provide the PHA with a consent form signed
by the applicant or tenant. When the owner makes such a request, the
PHA must obtain the applicant or tenant's criminal record from the
appropriate law enforcement agency. The PHA must not give the criminal
record, or disclose its content, to the owner. Instead, the PHA must
use the record to screen the applicant or evaluate the tenant based on
the owner's standards for admission and occupancy. The PHA may charge
the owner a fee for both obtaining the record and performing the
screening and evaluation services.

E. Records of Sex Offenders Subject to a Lifetime Registration
Requirement

This proposed rule would implement the requirement that PHAs and
owners of federally assisted housing prohibit admission of any
household that includes a person subject to a lifetime registration
requirement under a State sex offender registration program.
This provision requires that, in addition to any criminal records
check a PHA may conduct, the PHA also must make further inquiries, as
necessary, with State and local agencies to determine whether an
applicant is subject to a lifetime registration requirement under a
State sex offender registration program. (State and local agencies
responsible for collecting criminal history record information or
information on persons required to register as sex offenders are
required to comply with PHA requests for such information.) The PHA
must make this determination for owners of other federally assisted
housing if the housing is located in the PHA's jurisdiction and the
owner requests that the PHA assist in this way. As with other criminal
records obtained by the PHA on behalf of an owner pursuant to section
6(q) of the 1937 Act, the PHA must not release the information to the
owner but must screen the applicant or evaluate the tenant using the
owner's criteria. The PHA may charge a fee for this service.

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

The Public Housing Reform Act authorizes PHAs to obtain limited
information concerning public housing applicants from drug abuse
treatment facilities. A PHA may make an inquiry to a drug abuse
treatment facility only if it either makes the same inquiry with
respect to all applicants or makes inquiry concerning applicants with a
prior criminal record or prior tenancy showing the applicant engaged in
destruction of property, violent activity against another person or
interfered with another tenant's peaceful enjoyment of the premises. To
obtain information from a drug treatment facility, the PHA must provide
the facility with a written consent form signed by the individual
applicant. The PHA may only inquire whether the drug abuse treatment
facility reasonably believes that the individual is currently using
illegal drugs.

[[Page 40267]]

G. Records Management

PHAs must establish a records management system that ensures that
criminal records and records from drug abuse treatment facilities are
maintained confidentially, are not misused or improperly disseminated,
and are destroyed within the statutorily prescribed time frames. The
statute requires the imposition of a fine in the event that any PHA
agent obtains criminal records under false pretenses or discloses any
such information to anyone not legally entitled to such information.
The rule provides that records must not be kept in the applicant or
tenant file and that once the record is no longer needed it is
destroyed.
Information obtained from public records or obtained from law
enforcement agencies independent of this authority is not subject to
the restrictions on disclosure imposed by this rule.

H. Definition of Person With Disabilities

The 1998 Act amended the 1937 Act (at 42 U.S.C. 1437a(b)(3)(E)) by
adding a new sentence to the definition of a person with a disability
which states, ``Notwithstanding any other provision of law, no
individual shall be considered a person with disabilities, for purposes
of eligibility for low-income housing * * * solely on the basis of any
drug or alcohol dependence.'' This new statutory language is already
included in the Department's current definition of person with
disabilities (Sec. 5.403(a)), since the rule refers to the statute. The
statutory definition in the 1937 Act includes reference to the
definition of disability in section 223(d) of the Social Security Act.
The Social Security Administration (SSA) implements that provision
through regulations found at 20 CFR 404.1535, which exclude individuals
whose alcohol or drug addiction is a contributing factor material to
the determination of disability. The SSA rule states that a person is
considered disabled if the disabling physical and mental limitations
would persist upon discontinuation of drugs or alcohol abuse. (20 CFR
404.1535(b)(2)).
As required by the 1998 Act, the Department consulted with the
Departments of Justice, Health and Human Services and the Social
Security Administration, and reviewed pertinent regulations related to
the definition of disability. The Department is satisfied that the
statutory definition of ``person with disabilities'' included in the
existing rule incorporates the Social Security Administration's (SSA)
definition of disability located at section 223(d) of the Social
Security Act, and that the SSA's rule that excludes individuals whose
alcohol or drug addiction is a contributing material factor to their
disability is appropriate to apply to disability determinations under
HUD programs.

I. Compliance With Civil Rights Requirements

In developing their policies for screening and eviction under this
rule, PHAs and owners are, of course, bound to comply with
nondiscrimination and equal opportunity requirements, as provided in 24
CFR 5.105.

V. Findings and Certifications

Paperwork Reduction Act

(a) The proposed information collection requirements contained at
Secs. 5.853, 5.854, 5.855, 5.902, 5.903, 882.517, 960.204, and 982.553
of this rule have been submitted to the Office of Management and Budget
(OMB) for review, under section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. Chapter 35). An agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless the collection displays a valid control number.
(b) In accordance with 5 CFR 1320.5(a)(1)(iv), HUD estimates that
the total reporting and recordkeeping burden that will result from the
proposed collection of information as follows:

Reporting Burden
----------------------------------------------------------------------------------------------------------------
Est. average
Section reference Number of response/freq. Est. annual Burden (hours)
respondents of response time (hours)
----------------------------------------------------------------------------------------------------------------
5.853, 5.854, 5.855, 882.517, 982.553: Standards 4,500 1 30 135,000
for Admission of Drug Criminals; Other
Criminals; Alcohol Abusers.....................
5.902(c): Consent form from Family for Release 3,000 1 .15 450
of Criminal Records............................
5.902(d) and (f): PHA and Owner Request for 1,500 1 4 6,000
Criminal Conviction Records....................
5.902(f)(7): PHA Notification to Family and 1,500 1 1 1,500
Owner concerning Criminal Conviction Records...
5.903(d)(2): PHA request to State or local 300 1 2 600
agency for Sex Offender Information............
5.903(e)(6)(i): PHA Notification to Family and 300 1 1 300
Owner concerning Sex Offender Information......
960.204(c): PHA Requirement that Family provide 1,500 1 1 1,500
information whether any proposed household
member has ever been diagnosed or treated for
illegal drug use, abuse; sign consent form.....
960.204(d), (e)(i)(ii): PHA request for 500 1 1 500
Information from Drug Use Treatment Facility...
5.902(g), 5.903(f), 960.204(f): Establishment of 4,500 1 16 72,000
a Systems of Records Management and
Confidentiality................................
---------------------------------------------------------------
Total Reporting Burden...................... .............. .............. .............. 82,850
----------------------------------------------------------------------------------------------------------------

(c) In accordance with 5 CFR 1320.8(d)(1), the Department is
soliciting comments from members of the public and affected agencies
concerning the proposed collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;

[[Page 40268]]

(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
As described above, interested persons are invited to submit
comments regarding the information collection requirements in this
proposal. Under the provisions of 5 CFR part 1320, OMB is required to
make a decision concerning this collection of information between 30
and 60 days after today's publication date. Therefore, a comment on the
information collection requirements is best assured of having its full
effect if OMB receives the comment within 30 days of today's
publication. This time frame does not affect the deadline for comments
to the agency on the proposed rule, however. Comments must refer to the
rule by name and docket number (FR-4495-P-01) and must be sent to:

Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and
Budget, New Executive Office Building, Washington, DC 20503
and
Millie Hamman, Reports Management Officer, Office of Public and Indian
Housing, Department of Housing and Urban Development, Room 4238, 451
Seventh Street, SW, Washington, DC 20410

Environmental Impact

A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations in 24 CFR part 50 that
implement section 102(2)(C) of the National Environmental Policy Act of
1969 (42 U.S.C. 4223). The Finding is available for public inspection
between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the
Regulations Division, Office of General Counsel, Room 10276, Department
of Housing and Urban Development, 451 Seventh Street, SW, Washington,
DC.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. This proposed rule does not impose a Federal
mandate that will result in the expenditure by State, local, or tribal
governments in the aggregate, or by the private sector, of $100 million
or more in any one year within the meaning of Unfunded Mandates Reform
Act of 1995.

Executive Order 12866

The Office of Management and Budget (OMB) reviewed this proposed
rule under Executive Order 12866, Regulatory Planning and Review. OMB
determined that this proposed rule is a ``significant regulatory
action,'' as defined in section 3(f) of the Order (although not
economically significant, as provided in section 3(f)(1) of the Order).
Any changes made to the proposed rule subsequent to its submission to
OMB are identified in the docket file, which is available for public
inspection in the office of the Department's Rules Docket Clerk, Room
10276, 451 Seventh Street, SW, Washington, DC 20410-0500.

Impact on Small Entities

The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) (the RFA), has reviewed and approved this proposed rule
and in so doing certifies that this rule will not have a significant
economic impact on a substantial number of small entities. The reasons
for HUD's determination are as follows:
(1) A Substantial Number of Small Entities Will Not be Affected.
The proposed rule is exclusively concerned with public housing agencies
and with owners of federally assisted housing. Specifically, the
proposed rule will establish requirements governing applicant screening
and termination of assistance and occupancy based on criminal activity.
Under the definition of ``Small governmental jurisdiction'' in section
601(5) of the RFA, the provisions of the RFA are applicable only to
those few PHAs that are part of a political jurisdiction with a
population of under 50,000 persons. Owners or managers of assisted
housing would qualify as small entities only if they had less than $1.5
million in gross receipts annually. The number of entities potentially
affected by this rule is therefore not substantial.
(2) No Significant Economic Impact. The proposed rule will not
change the amount of funding available under the federally assisted
housing assistance programs. In the programs administered by the Office
of Housing, management agents perform the functions affected by the
rule for owners, including nonprofit owners. These agents are approved
because they provide management acceptable to HUD and are capable of
carrying out requirement management activities, including changes in
procedures. They receive fees based on the work they perform, and
guidelines provide for allowing fee increases for changed work
procedures. Accordingly, the economic impact of this rule will not be
significant, and it will not affect a substantial number of small
entities.
Notwithstanding HUD's determination that this rule will not have a
significant economic effect on a substantial number of small entities,
HUD specifically invites comments regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in this preamble.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official for HUD under
section 6(a) of Executive Order 12612, Federalism, has determined that
this rule will not have federalism implications concerning the division
of local, State, and Federal responsibilities. No programmatic or
policy change under this rule will affect the relationship between the
Federal government and State and local governments.

Catalog of Domestic Assistance Numbers

The Catalog of Domestic Assistance numbers for the programs
affected by this proposed rule are 14.120, 14.195, 14.850, 14.855 and
14.857.

List of Subjects

24 CFR Part 5

Administrative practices and procedures, Aged, Claims, Drug abuse,
Drug traffic control, Grant programs--housing and community
development, Grant programs--Indians, Individuals with disabilities,
Loan programs--housing and community development, Low and moderate
income housing, Mortgage insurance, Pets, Public housing, Rent
subsidies, Reporting and Recordkeeping requirements.

24 CFR Part 200

Administrative practice and procedure, Aged, Civil rights, Grant
programs--housing and community development, Loan programs--housing and
community development, Reporting and recordkeeping requirements.

24 CFR Part 247

Grant programs--housing and community development, Loan programs--
housing and community development, Low and moderate income housing,
Rent subsidies.

[[Page 40269]]

24 CFR Part 880

Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.

24 CFR Part 882

Grant programs--housing and community development, Homeless, Lead
poisoning, Manufactured homes, Rent subsidies, Reporting and
recordkeeping requirements.

24 CFR Part 884

Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements, rural areas.

24 CFR Part 891

Aged, Capital advance programs, Civil rights, Grant programs--
housing and community development, Individuals with disabilities, Loan
programs--housing and community development, Low- and moderate-income
housing, Mental health programs, Rent subsidies, Reporting and
recordkeeping requirements.

24 CFR Part 960

Aged, Grant program--housing and community development, Individuals
with disabilities, Public housing.

24 CFR Part 966

Grant programs--housing and community development, Public housing.

24 CFR Part 982

Grant programs--housing and community development, Housing, Rent
subsidies, Reporting and recordkeeping requirements.

Accordingly, HUD proposes to amend 24 CFR parts 5, 200, 247, 880,
882, 884, 891, 960, 966 and 982, as follows:

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

1. The authority citation for part 5 continues to read as follows:

Authority: 42 U.S.C. 3535(d), unless otherwise noted.

2. Amend Sec. 5.100 by adding the following definitions, in
alphabetical order:

Sec. 5.100 Definitions.

* * * * *
Drug means a controlled substance as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802).
Drug-related criminal activity means the illegal manufacture, sale,
distribution, or use of a drug, or the possession of a drug with intent
to manufacture, sell, distribute or use the drug.
* * * * *
Federally assisted housing (for purposes of subparts I and J of
this part) means housing assisted under any of the following programs:
(1) Public housing;
(2) Housing receiving project-based or tenant-based assistance
under Section 8 (42 U.S.C. 1437f);
(3) Housing that is assisted under section 202 of the Housing Act
of 1959, as amended by section 801 of the National Affordable Housing
Act (12 U.S.C. 1701q);
(4) Housing that is assisted under section 202 of the Housing Act
of 1959, as such section existed before the enactment of the National
Affordable Housing Act;
(5) Housing that is assisted under section 811 of the National
Affordable Housing Act (42 U.S.C. 8013);
(6) Housing financed by a loan or mortgage insured under section
221(d)(3) of the National Housing Act (12 U.S.C. 1715l(d)(3)) that
bears interest at a rate determined under the proviso of section
221(d)(5) of such Act (12 U.S.C. 1715l(d)(5));
(7) Housing insured, assisted, or held by HUD or by a State or
local agency under section 236 of the National Housing Act (12 U.S.C.
1715z-l); or
(8) Housing assisted by the Rural Development Administration under
section 514 or section 515 of the Housing Act of 1949 (42 U.S.C. 1483,
1484).
* * * * *
Public housing means housing assisted under the 1937 Act (42 U.S.C.
1437, et seq.), other than housing assisted under Section 8 (42 U.S.C.
1437f).
* * * * *
Violent criminal activity means any criminal activity that has as
one of its elements the use, attempted use, or threatened use of
physical force substantial enough to cause, or be reasonably likely to
cause, nontrivial bodily injury or property damage.
3. Amend part 5 by adding new subparts I and J, to read as follows:

Subpart I--Preventing Crime in Federally Assisted Housing--When a
Project Owner May Deny Admission or Terminate Tenancy for Criminal
Activity or Alcohol Abuse by Household Members

Sec.
5.851 Applicability to subsidized projects.
5.852 Terms.
5.853 Prohibiting admission of drug criminals.
5.854 Prohibiting admission of other criminals.
5.855 Prohibiting admission of alcohol abusers.
5.856 Evicting drug criminals.
5.857 Evicting other criminals.
5.858 Evidence of criminal activity.
5.859 Evicting alcohol abusers.
5.860 Drug use and alcohol abuse: owner discretion.

Subpart J--Access to Criminal Records and Information

Sec.
5.901 Definitions.
5.902 Availability of criminal records.
5.903 Sex offender information.

Subpart I--Preventing Crime in Federally Assisted Housing--When a
Project Owner May Deny Admission or Terminate Tenancy for Criminal
Activity or Alcohol Abuse by Household Members

Sec. 5.851 Applicability to subsidized projects.

(a) Except as provided in paragraph (b) or (c) of this section,
subpart I of this part is applicable to project-based assistance for
federally assisted housing.
(b) Subpart I of this part does not apply to public housing or
housing assisted with tenant-based assistance under Section 8. For
public housing, see part 960 (admission) and part 966 (termination of
tenancy) of this title. For Section 8 tenant-based assistance, see part
982 of this title.
(c) Subpart I of this part does not apply to housing assisted by
the Rural Development Administration under section 514 or section 515
of the Housing Act of 1949.

Sec. 5.852 Terms.

(a) Terms found elsewhere. The following terms are defined in
subpart A of this part: 1937 Act, drug, drug-related criminal activity,
federally assisted housing, HUD, public housing, public housing agency
(PHA), Section 8, violent criminal activity.
(b) Additional terms (for purposes of subpart I of this part).
Covered person. A resident, any member of the resident's household,
a guest or another person under the resident's control.
Household. The family and any live-in aide approved by the
responsible entity.
Owner. The owner of federally assisted housing.
Premises. The building or complex in which the assisted dwelling
unit is located, including common areas and grounds.
Responsible Entity. For the public housing program, and for the
Section 8 tenant-based assistance program (part 982 of this title), the
Section 8 project-based certificate or project-based

[[Page 40270]]

voucher program (part 983 of this title) and the Section 8 moderate
rehabilitation program (part 882 of this title), responsible entity
means the PHA administering the program under an ACC with HUD. For all
other federally assisted housing, the responsible entity means the
owner of the housing.

Sec. 5.853 Prohibiting admission of drug criminals.

(a) The owner must establish standards that prohibit admission of a
household to federally assisted housing (subject to the provisions of
Sec. 5.860 of this subpart) if:
(1) The owner determines that any household member is currently
engaging in or has engaged in drug-related criminal activity; or
(2) The owner determines that it has reasonable cause to believe
that illegal use or a pattern of illegal use of a drug by a household
member may threaten the health or safety of, or the right to peaceful
enjoyment of the premises by, other residents).
(b) The owner may require the household to submit sufficient
evidence, as determined by the owner, that the members of the household
have not engaged in drug-related criminal activity during a reasonable
period, as determined by the owner, before admission to the federally
assisted housing.
(c) The owner standards must prohibit admission to the federally
assisted housing if any household member has been evicted from
federally assisted housing for drug-related criminal activity. This
prohibition applies during a reasonable period, as determined by the
owner, which is at least three years from the date of the judicial
determination authorizing the eviction. However, the owner may admit
the household if the owner determines:
(1) That the evicted household member who engaged in drug-related
criminal activity has successfully completed a supervised drug
rehabilitation program, or
(2) That the circumstances leading to the eviction no longer exist
(for example, the criminal household member has died or is imprisoned).

Sec. 5.854 Prohibiting admission of other criminals.

(a) The owner may prohibit admission of a household to federally
assisted housing under standards established by the owner if the owner
determines that any household member is currently engaging in or has
engaged in:
(1) Violent criminal activity,
(2) Other criminal activity which may threaten the health or safety
of, or the right to peaceful enjoyment of the premises by, other
residents, or
(3) Other criminal activity which may threaten the health or safety
of the owner, property management staff, or persons performing a
contract administration function or responsibility on behalf of an
owner or PHA (including an employee, contractor, subcontractor or
agent).
(b) The owner may require the family to submit sufficient evidence,
as determined by the owner, that the members of the household have not
engaged in such criminal activity during a reasonable period, as
determined by the owner, before admission to the federally assisted
housing.
(c) The owner must establish standards that prohibit admission to
federally assisted housing if any member of the household is subject to
a lifetime registration requirement under a State sex offender
registration program. In screening of applicants, the owner must check
public documents or request the PHA to perform criminal history
background check necessary to determine whether any household member is
subject to a lifetime sex offender registration requirement. (See
Sec. 5.903.)

Sec. 5.855 Prohibiting admission of alcohol abusers.

The owner must establish standards that prohibit admission to
federally assisted housing if the owner determines it has reasonable
cause to believe that abuse or pattern of abuse of alcohol by a
household member may threaten the health or safety of, or the right to
peaceful enjoyment of the premises by, other residents.

Sec. 5.856 Evicting drug criminals.

The lease must provide that the owner may terminate the tenancy
during the term of the lease if any covered person is currently engaged
in or has engaged in any drug-related criminal activity on or near the
premises.

Sec. 5.857 Evicting other criminals.

(a) Threat to other residents. The lease must provide that any of
the following types of criminal activity by a covered person are
grounds for termination of tenancy during the term of the lease:
(1) Any criminal activity that threatens the health or safety of,
or the right to peaceful enjoyment of the premises by, other residents
(including property management staff residing on the premises); or
(2) Any criminal activity that threatens the health or safety of,
or the right to peaceful enjoyment of their residences by, persons
residing in the immediate vicinity of the premises.
(b) Fugitive felon or parole violator. The lease must provide that
the owner may terminate the tenancy during the term of the lease if a
member of the household is:
(1) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(2) Violating a condition of probation or parole imposed under
Federal or State law.

Sec. 5.858 Evidence of criminal activity.

The owner may deny admission or terminate tenancy for criminal
activity by a family member if the owner determines that the household
member has engaged in the criminal activity, regardless of whether the
household member has been arrested or convicted for such activity.

Sec. 5.859 Evicting alcohol abusers.

The lease must provide that the owner may terminate the tenancy if
the owner determines that a household member has engaged in abuse or
pattern of abuse of alcohol that threatens the health or safety of, or
the right to peaceful enjoyment of the premises by, other residents.

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

(a) Consideration of rehabilitation. In determining whether to deny
admission or terminate tenancy for illegal drug use or a pattern of
illegal drug use by a household member who is no longer engaging in
such use, or for abuse or a pattern of abuse of alcohol by a household
member who is no longer engaging in such abuse, the owner may consider
whether such household member is participating in or has successfully
completed a supervised drug or alcohol rehabilitation program, or has
otherwise been rehabilitated successfully.
(b) Conditions for admission or continued assistance. (1) In
determining whether to deny admission or terminate tenancy for illegal
drug use by a household member, or for alcohol abuse by a household
member, the owner may impose, as a condition of admission to or
continued assistance in the program for other household members, a
requirement that any household member who engaged in or is culpable for
the drug use or alcohol abuse may not reside with the household or on
the premises.
(2) The owner may require a household member who has engaged in

[[Page 40271]]

the illegal use of a drug (as defined in Sec. 5.100 of this part), or
in alcohol abuse that threatened the health or safety of, or the right
to peaceful enjoyment of the premises by, other residents, to submit
evidence of current participation in, or successful completion of, a
supervised drug or alcohol rehabilitation program as a condition to
being allowed to reside with the household or on the premises.

Subpart J--Access to Criminal Records and Information

Sec. 5.901 Definitions.

(a) Terms found elsewhere. The following terms are defined in
subpart A of this part: 1937 Act, annual contributions contract (ACC),
drug, household, HUD, public housing, public housing agency (PHA),
Section 8.
(b) Additional terms (for purposes of subpart J of this part).
Responsible entity. For the public housing program, the Section 8
tenant-based assistance program (part 982 of this title), the Section 8
project-based certificate or project-based voucher program (part 983 of
this title), and the Section 8 moderate rehabilitation program (part
882 of this title), responsible entity means the PHA administering the
program under an ACC with HUD. For all other Section 8 programs,
responsible entity means the Section 8 owner.

Sec. 5.902 Availability of criminal records.

(a) Purpose and applicability. (1) This section authorizes PHAs
that administer the Section 8 and public housing programs to obtain
criminal conviction records from a law enforcement agency. The criminal
conviction records are used to screen applicants for admission to these
programs and for lease enforcement or eviction. PHAs may not provide
these records concerning a household member receiving Section 8 tenant-
based assistance to owners.
(2) This section implements section 6(q) of the 1937 Act (42 U.S.C.
1437d(q)). The provisions of this section only apply to criminal
records obtained by a PHA from a law enforcement agency under this
section. The provisions of this section do not apply to criminal
records obtained by a PHA or others from law enforcement agencies other
than under this section, e.g., criminal records that are publicly
available or records offered by law enforcement agencies.
(b) Additional definitions (for purposes of this section).
Adult. A person who is 18 years of age or older, or who has been
convicted of a crime as an adult under any Federal, State, or tribal
law.
Law enforcement agency. The National Crime Information Center,
police departments and other law enforcement agencies that hold
criminal conviction records.
(c) Consent for release of criminal conviction records. (1) The
responsible entity may require the family to submit a consent form
signed by each adult household member.
(2) By execution of the consent form, an adult household member
consents that:
(i) Any law enforcement agency may release criminal conviction
records concerning the household member to a PHA in accordance with
this section;
(ii) The PHA may receive the criminal conviction records from a law
enforcement agency, and may use the records in accordance with this
section.
(d) PHA request for criminal conviction records. (1) A PHA that
administers a Section 8 or public housing program under an ACC with HUD
may request criminal conviction records from any law enforcement agency
concerning an adult member of a household:
(i) Applying for admission to a public housing program or to a
Section 8 tenant-based or project-based program.
(ii) Residing in public housing or receiving Section 8 project-
based assistance.
(2) The PHA request to the law enforcement agency must include a
copy of the consent form signed by the household member.
(3) When the law enforcement agency receives the PHA request
(including a copy of the signed consent form), the law enforcement
agency must promptly release to the PHA a certified copy of any
criminal conviction records concerning the household member in the
possession or control of the law enforcement agency. NCIC records must
be provided in accordance with NCIC procedures.
(4) The law enforcement agency may charge a reasonable fee for
releasing criminal conviction records to the PHA.
(e) Permitted use and disclosure of criminal conviction records
received by PHA. (1) Use of records. Criminal conviction records
received by a PHA from a law enforcement agency in accordance with this
section may only be used for the following purposes:
(i) Applicant screening: (A) PHA screening of applicants for
admission to public housing (part 960 of this title);
(B) PHA screening of applicants for admission to the Section 8
tenant-based assistance program (part 982 of this title);
(C) PHA screening of applicants for admission to the Section 8
moderate rehabilitation program (part 882 of this title); or the
Section 8 project-based certificate or project-based voucher program
(part 983 of this title); or
(D) PHA screening concerning criminal conviction of applicants for
admission to Section 8 project-based assistance, at the request of the
owner. (For requirements governing use of criminal conviction records
obtained by a PHA at the request of a Section 8 owner under this
section, see paragraph (f) of this section.)
(ii) Lease enforcement and eviction: (A) PHA enforcement of public
housing leases; and PHA eviction of public housing residents;
(B) Enforcement of leases by a Section 8 project owner; and
eviction of residents by a Section 8 project owner. (However, criminal
conviction records received by a PHA from a law enforcement agency
under this section may not be used for lease enforcement or eviction of
residents receiving Section 8 tenant-based assistance.)
(2) PHA disclosure of records. A PHA may only disclose the criminal
conviction records which it receives from a law enforcement agency as
follows:
(i) Criminal conviction records may be disclosed to officers or
employees of the PHA, or to authorized representatives of the PHA who
have a job-related need to have access to the information. For example,
if the PHA is seeking to evict a public housing tenant on the basis of
criminal activity as shown in criminal conviction records provided by a
law enforcement agency, the records may be disclosed to PHA employees
performing functions related to the eviction, or to a PHA hearing
officer conducting an administrative grievance hearing concerning the
proposed eviction.
(ii) Criminal conviction records may be disclosed to the extent
necessary in connection with a judicial eviction proceeding. For
example, criminal conviction records may be included in pleadings or
other papers filed in an eviction action, may be disclosed to parties
to the action or the court, and may be filed in court or used in
evidence. Upon disclosure as necessary in connection with judicial
eviction proceedings, such criminal conviction records may become
public information, and the PHA is not responsible for controlling
access to or knowledge of such records after such disclosure.
(f) Owner's request for criminal records. (1) An owner of a unit
with Section 8 project-based assistance that is located in a PHA's
jurisdiction may request that the PHA obtain criminal conviction
records of a household

[[Page 40272]]

member from a law enforcement agency. The PHA must review the records
on the owner's behalf in accordance with paragraph (f)(6) of this
section.
(2) The owner's request must include a copy of the consent form,
signed by the household member.
(3) The owner's request must also specify whether the owner is
requesting the PHA to obtain the criminal conviction records concerning
the household member for applicant screening, for lease enforcement, or
for eviction.
(4) The owner's request must also include the following information
concerning the criteria used by the owner in applicant screening, lease
enforcement or eviction:
(i) If the owner intends to use the PHA determination regarding any
such criminal conviction records for applicant screening, the owner's
request must include the owner standards for prohibiting admission of
drug criminals in accordance with Sec. 5.853, and for prohibiting
admission of other criminals in accordance with Sec. 5.854.
(ii) If the owner intends to use the PHA determination regarding
any such criminal conviction records for eviction, the owner's request
must include the owner standards for evicting drug criminals in
accordance with Sec. 5.856, and for evicting other criminals in
accordance with Sec. 5.857.
(iii) If the owner intends to use the PHA determination regarding
any such criminal conviction records for lease enforcement other than
eviction, the owner's request must include any owner standards for
lease enforcement because of criminal activity by members of a
household.
(5) If the owner submits a request for criminal conviction records
concerning an adult household member to the PHA, the PHA must request
the criminal conviction records from the appropriate law enforcement
agency or agencies as determined by the PHA.
(6) If the PHA receives criminal conviction records requested by a
Section 8 project owner, the PHA must determine whether criminal action
by a household member, as shown by such criminal conviction records,
may be a basis for applicant screening, lease enforcement or eviction.
The PHA determination must be based on the criteria used by the owner
as specified in the owner's request (see paragraph (f)(4) of this
section). For example, if the owner wants to know if the household
member has engaged in criminal activity that may be a basis for denying
admission, the PHA must determine whether criminal activity as shown by
any criminal conviction record received from a law enforcement agency
may be a basis for prohibiting admission in accordance with HUD
regulations and the owner criteria.
(7) The PHA must notify the family and the owner whether it has
received criminal conviction records concerning the household member,
and of its determination whether such criminal conviction records may
be a basis for applicant screening, lease enforcement or eviction.
However, except as provided in paragraph (f)(8) of this section, the
PHA must not disclose the household member's criminal conviction record
or the content of that record to the owner.
(8) The PHA may only disclose criminal conviction records to the
owner for use in connection with judicial eviction proceedings by the
owner. The PHA may only release the records:
(i) If the owner has requested the criminal conviction records
concerning a household member for use in connection with eviction; and
(ii) If the PHA has determined that criminal activity by the
household member as shown by such records received from a law
enforcement agency may be a basis for eviction from a Section 8 unit;
and
(iii) If the owner provides the PHA a written certification that
the owner must use the criminal conviction records only to the extent
necessary in connection with judicial eviction proceeding in which the
owner seeks to evict the Section 8 tenant based on criminal activity by
the household member as shown in the criminal conviction records.
(9) If an owner requests a PHA to obtain criminal conviction
records in accordance with this section, the PHA may charge the owner
reasonable fees for making the request on behalf of the owner and for
taking other actions for the owner. The PHA may require the owner to
reimburse costs incurred by the PHA, including reimbursement of any
fees charged to the PHA by the law enforcement agency.
(g) Records management. The PHA must establish and implement a
system of records management that ensures that any criminal record
received by the PHA from a law enforcement agency is:
(1) Maintained confidentially;
(2) Not misused or improperly disseminated; and
(3) Destroyed, once the purpose for which the record was requested
has been accomplished.

Sec. 5.903 Sex offender information.

(a) Purpose. The purpose of this section is to prevent admission of
dangerous sex offenders to federally assisted housing. For this
purpose, PHAs are authorized to obtain sex offender registration
information from State and local agencies.
(b) Applicability. The provisions of this section apply to criminal
history background checks by a PHA of State sex offender registration
information in accordance with 42 U.S.C. 13663. The provisions of this
section do not apply to sex offender information obtained by a PHA or
others from law enforcement agencies other than under this section,
such as publicly available information listing persons subject to a
lifetime registration requirement under a State sex offender
registration program.
(c) Terms found elsewhere. The following terms are defined in
subpart A of this part: federally assisted housing, household, HUD,
public housing, public housing agency (PHA), owner, Section 8.
(d) How PHA obtains sex offender registration information. (1) A
PHA that administers a Section 8 or public housing program under an ACC
with HUD must carry out criminal history background checks necessary to
determine whether a member of a household applying for admission to any
federally assisted housing program is subject to a lifetime sex
offender registration requirement under a State sex offender
registration program.
(2) If the PHA requests such information from any State or local
agency responsible for the collection or maintenance of such
information, the State or local agency must promptly provide the PHA
such information in its possession or control.
(3) The State or local agency may charge a reasonable fee for
providing the information.
(e) Owner's request for sex offender registration information.
(1) An owner of federally assisted housing that is located in the
jurisdiction of a PHA that administers a Section 8 or public housing
program under an ACC with HUD may request that the PHA obtain
information necessary to determine whether a household member is
subject to a lifetime registration requirement under a State sex
offender registration requirement.
(2) The owner's request must specify whether the owner is asking
the PHA to obtain the sex offender registration information concerning
the household member for applicant screening, for lease enforcement, or
for eviction.
(3) The owner's request must also include the following information
concerning the criteria used by the

[[Page 40273]]

owner in applicant screening, lease enforcement or eviction:
(i) If the owner intends to use the PHA determination regarding any
such sex offender registration information for applicant screening, the
owner's request must include the owner standards in accordance with
Sec. 5.854(c) for prohibiting admission of persons subject to a
lifetime sex offender registration requirement.
(ii) If the owner intends to use the PHA determination regarding
any such sex offender registration information for eviction, the
owner's request must include the owner standards for evicting persons
subject to a lifetime registration requirement in accordance with
Sec. 5.857.
(iii) If the owner intends to use the PHA determination regarding
any such sex offender registration information for lease enforcement
other than eviction, the owner's request must include any owner
standards for lease enforcement because of criminal activity by members
of a household.
(4) If an owner submits a request for sex offender registration
information from the PHA, the PHA must obtain such information in
accordance with paragraph (d) of this section.
(5) If the PHA obtains sex offender registration information from a
State or local agency upon request from an owner, the PHA must
determine whether such information may be a basis for applicant
screening, lease enforcement or eviction. The PHA determination must be
based on the criteria used by the owner as specified in the owner's
request.
(6)(i) The PHA must notify the family and the owner of its
determination whether sex offender registration information received by
the PHA under this section concerning a household member may be a basis
for applicant screening, lease enforcement or eviction in accordance
with HUD requirements and the criteria used by the owner.
(ii) The PHA must not disclose to the owner any sex offender
registration information obtained by the PHA under this section.
However, the restriction on PHA disclosure of sex offender registration
information does not apply to information that is public information,
or is obtained by a PHA other than under this section (for example,
information posted on a State sex offender registration website).
(7) If an owner asks a PHA to obtain sex offender registration
information concerning a household member in accordance with this
section, the PHA may charge the owner reasonable fees for making the
request on behalf of the owner and for taking other actions for the
owner. The PHA may require the owner to reimburse costs incurred by the
PHA, including reimbursement of any fees charged to the PHA by a State
or local agency for releasing the information.
(f) Records management. (1) The PHA must establish and implement a
system of records management that ensures that any sex offender
registration information record received by the PHA from a State or
local agency under this section is:
(i) Maintained confidentially;
(ii) Not misused or improperly disseminated; and
(iii) Destroyed, once the purpose for which the record was
requested has been accomplished.
(2) The records management requirements do not apply to information
that is public information, or is obtained by a PHA other than under
this section.
(g) Opportunity to dispute. If a PHA obtains sex offender
registration information from a State or local agency under paragraph
(d) of this section showing that a household member is subject to a
lifetime sex offender registration requirement, the PHA must provide
the family a copy of such information, and an opportunity to dispute
the accuracy and relevance of the information. This opportunity must be
provided before a denial of admission, eviction or lease enforcement
action on the basis of such information.

PART 200--INTRODUCTION TO FHA PROGRAMS

4. The authority citation for part 200 continues to read as
follows:

Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).

5. Add a new Sec. 200.37 under the heading ``Miscellaneous Cross
Cutting Regulations'' to read as follows:

Sec. 200.37 Preventing crime in federally assisted housing.

Programs administered under section 236 and under sections
221(d)(3) and 221(d)(5) of the National Housing Act are subject to the
requirements of part 5, subparts I and J, of this title.

PART 247--EVICTIONS FROM SUBSIDIZED AND HUD-OWNED PROJECTS

6. The authority citation for part 247 continues to read as
follows:

Authority: 12 U.S.C. 1701q, 1701s, 1715b, 1715l, and 1715z-1; 42
U.S.C. 1437a, 1437c, 1437f, and 3535(d).

7. In Sec. 247.2, revise the last sentence in the definition of
``subsidized project'' to read as follows:

Sec. 247.2 Definitions.

* * * * *
Subsized project * * * For purposes of this part, subsidized
project also includes those units in a housing project that receive the
benefit of:
(1) Rental subsidy in the form of rent supplement payments under
section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C.
1701s); or
(2) Housing assistance payments for project-based assistance under
Section 8 of the 1937 Act (42 U.S.C. 1437f). However, this part is not
applicable to Section 8 project-based assistance under parts 880, 881,
883 and 884 of this title (except as specifically provided in those
parts).
8. In Sec. 247.3, revise paragraph (a)(3) to read as follows:

Sec. 247.3 Entitlement of tenants to occupancy.

(a) * * *
(3) Criminal activity or alcohol abuse by a covered person in
accordance with part 5, subparts I and J, of this title.
* * * * *

PART 880--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR NEW
CONSTRUCTION

9. The authority citation for part 880 continues to read as
follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.

Sec. 880.607 [Amended]

10. In Sec. 880.607, revise paragraph (b)(1)(iii) to read as
follows:
* * * * *
(b) * * *
(1) * * *
(iii) Criminal activity or alcohol abuse by a covered person in
accordance with part 5, subparts I and J, of this title.
* * * * *

PART 882--SECTION 8 MODERATE REHABILITATION PROGRAMS

11. The authority citation for part 882 continues to read as
follows:

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

12. In Sec. 882.102, amend paragraph (b) by removing the
definitions of the terms ``Drug-related criminal activity'', ``Drug-
trafficking'', and ``Violent criminal activity'', and by adding
definitions of the following additional terms, in alphabetical order:

Sec. 882.102 Definitions.

* * * * *
Covered person. A resident, any member of the resident's household,
a guest or another person under the resident's control.
* * * * *

[[Page 40274]]

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

Sec. 882.514 [Amended]

13. In Sec. 882.514, remove paragraph (a)(2) and redesignate
paragraph (a)(3) as paragraph (a)(2).
14. In part 882, add a new Sec. 882.518 to read as follows:

Sec. 882.518 When a PHA may deny admission or terminate assistance for
criminals and alcohol abusers.

(a) Requirement to deny admission. (1) Prohibiting admission of
drug criminals. (i) The PHA must establish standards that prohibit
admission of a household to the Section 8 moderate rehabilitation
program if the PHA determines that any household member is currently
engaging in or has engaged in drug-related criminal activity or the PHA
determines that it has reasonable cause to believe that illegal use or
a pattern of illegal use of a drug, as defined in Sec. 5.100 of this
part, by a household member may threaten the health or safety of, or
the right to peaceful enjoyment of the premises by, other residents).
(ii) The PHA may require the household to submit sufficient
evidence, as determined by the PHA, that the members of the household
have not engaged in drug-related criminal activity during a reasonable
period, as determined by the PHA, before admission to the program.
(iii) The PHA standards must prohibit admission to the program if
any household member has been evicted from federally assisted housing
for drug-related criminal activity. This prohibition applies during a
reasonable period, as determined by the PHA, which is at least three
years from the date of the judicial determination authorizing the
eviction. The PHA may admit the household if the PHA determines:
(A) That the evicted household member who engaged in drug-related
criminal activity has successfully completed a supervised drug
rehabilitation program approved by the PHA, or
(B) That the circumstances leading to eviction no longer exist (for
example, the criminal household member has died or is imprisoned).
(iv) The PHA must establish standards that permanently prohibit
admission to the program if any household member has ever been
convicted of drug-related criminal activity for manufacture or
production of methamphetamine on the premises of federally assisted
housing.
(2) Prohibiting admission of other criminals. (i) The PHA may
prohibit admission of a household to the program under standards
established by the PHA if the PHA determines that any household member
is currently engaged in or has engaged in:
(A) Violent criminal activity,
(B) Other criminal activity which may threaten the health or safety
of, or the right to peaceful enjoyment of the premises by, other
residents,
(C) Other criminal activity which may threaten the health or safety
of the owner, property management staff, or persons performing a
contract administration function or responsibility on behalf of the PHA
(including a PHA employee or a PHA contractor, subcontractor or agent).
(ii) The PHA may require the household to submit sufficient
evidence, as determined by the PHA, that the members of the household
have not engaged in such criminal activity during a reasonable period,
as determined by the PHA, before admission to the program.
(iii) The PHA must establish standards that prohibit admission to
the program if any member of the household is subject to a lifetime
registration requirement under a State sex offender registration
program. In screening of applicants, the PHA must perform criminal
history background checks necessary to determine whether any household
member is subject to a lifetime sex offender registration requirement.
(3) Prohibiting admission of alcohol abusers. The PHA must
establish standards that prohibit admission to the program if the PHA
determines that it has reasonable cause to believe that abuse or
pattern of abuse of alcohol by a household member may adversely affect
the health or safety of, or the right to peaceful enjoyment of the
premises by, other residents.
(b) Terminating assistance. (1) Terminating assistance for drug
criminals. (i) The PHA must establish standards that allow the PHA to
terminate assistance for a family under the program if the PHA
determines that any household member has engaged in drug-related
criminal activity.
(ii) Methamphetamine conviction--termination of assistance. The PHA
must immediately terminate assistance for a family under the program if
the PHA determines that any member of the household has ever been
convicted of drug-related criminal activity for manufacture or
production of methamphetamine on the premises of federally assisted
housing.
(2) Terminating assistance for other criminals. (i) The PHA must
establish standards that allow the PHA to terminate assistance for a
family if the PHA determines that any household member has engaged in
violent criminal activity.
(ii) Fugitive felon or parole violator. The PHA may terminate
assistance for a family if the PHA determines that a member of the
household is:
(A) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(B) Violating a condition of probation or parole imposed under
Federal or State law.
(3) Evidence of criminal activity. The PHA may deny admission or
terminate assistance for criminal activity by a household member, as
authorized in this section, if the PHA determines that the household
member has engaged in the criminal activity, regardless of whether the
household member has been arrested or convicted for such activity.
(4) Terminating assistance for alcohol abusers. The PHA must
establish standards that allow termination of assistance for a family
if the PHA determines that a household member has engaged in abuse or
pattern of abuse of alcohol that threatens the health or safety of, or
the right to peaceful enjoyment of the premises by, other residents.
(5) Drug use or alcohol use: PHA discretion. (i) Consideration of
rehabilitation. In determining whether to deny admission or terminate
assistance for illegal drug use by a household member who is no longer
engaging in such use, or for alcohol abuse by a household member who is
no longer engaging in such abuse, the PHA may consider whether the
household member is participating in or has successfully completed a
supervised drug or alcohol rehabilitation program, or has otherwise
been rehabilitated successfully.
(ii) Conditions for admission or continued assistance. (A) In
determining whether to deny admission or terminate assistance for
illegal use of a drug (as defined in Sec. 5.100 of this title) by a
household member, or for alcohol abuse by a household member, the PHA
may impose, as a condition of admission to, or continued assistance in
the program for other family members, a requirement that the family
member who engaged in or is culpable for such use or abuse may not
reside with the household or on the premises.
(B) The PHA may require a household member who has engaged in the
illegal

[[Page 40275]]

use of a drug (as defined in Sec. 5.100 of this title), or in alcohol
abuse that threatened the health or safety of, or the right to peaceful
enjoyment of the premises by, other residents, to submit evidence of
current participation in, or successful completion of, a supervised
drug or alcohol rehabilitation program as a condition of continued
assistance.

PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW
CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING
PROJECTS

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

Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.

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

Sec. 884.216 Termination of tenancy.

* * * * *
(b) Termination of tenancy for criminal activity or alcohol abuse
by a covered person is subject to part 5, subpart G of this title.
* * * * *

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

17. The authority citation for part 891 continues to read as
follows:

Authority: 12 U.S.C. 1701q; 42 U.S.C. 1437f, 3535(d), and 8013.

18. Revise Sec. 891.430 to read as follows:

Sec. 891.430 Denial of admission, termination of tenancy, and
modification of lease.

(a) The provisions of part 5, subpart I, of this title apply to
Section 202 and Section 811 capital advance projects.
(b) The provisions of part 247 of this title apply to all decisions
by an owner to terminate the tenancy or modify the lease of a household
residing in a unit (or residential space in a group home).
19. Revise Sec. 891.630 to read as follows:

Sec. 891.630 Denial of admission, termination of tenancy, and
modification of lease.

(a) The provisions of part 5, subpart I, of this title apply to
Section 202 direct loan projects.
(b) The provisions of part 247 of this title apply to all decisions
by a Borrower to terminate the tenancy or modify the lease of a family
residing in a unit.
20. Revise Sec. 891.770 to read as follows:

Sec. 891.770 Denial of admission, termination of tenancy, and
modification of lease.

(a) The provisions of part 5, subpart I, of this title apply to
Section 202 direct loan projects with Section 162 assistance for
disabled families.
(b) The provisions of part 247 of this title apply to all decisions
by a Borrower to terminate the tenancy or modify the lease of a family
residing in a unit (or residential space in a group home).

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

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

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

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

Subpart A--Applicability and Definitions

Sec.
960.1 Applicability.
960.2 Definitions.

Subpart A--Applicability and Definitions

Sec. 960.1 Applicability.

This part is applicable to public housing.

Sec. 960.2 Definitions.

(a) Terms found elsewhere. The following terms are defined in part
5, subpart A of this title: 1937 Act, drug, drug-related criminal
activity, federally assisted housing, HUD, public housing, public
housing agency (PHA), Section 8, violent criminal activity.
(b) Additional terms (for purposes of this part).
Covered person. A resident, any member of the resident's household,
a guest or another person under the resident's control.
Household. The family and any PHA-approved live-in aide.
Premises. The building or complex in which the public housing
dwelling unit is located, including common areas and grounds.
23. In subpart B of part 960, remove Sec. 960.202, redesignate
Sec. 960.204 as Sec. 960.202, and add new Secs. 960.203 and 960.204 to
read as follows:

Sec. 960.203 When a PHA may deny admission for criminal activity or
drug abuse by household members.

(a) Prohibiting admission of drug criminals. (1) The PHA must
establish standards that prohibit admission of a household to the PHA's
public housing program if:
(i) The PHA determines that any household member is currently
engaging in or has engaged in drug-related criminal activity; or
(ii) The PHA determines that it has reasonable cause to believe
that illegal drug use or a pattern of illegal drug use by a household
member may adversely affect the health or safety of, or the right to
peaceful enjoyment of the premises by, other residents.
(2) The PHA may require the household to submit sufficient
evidence, as determined by the PHA, that the members of the household
have not engaged in drug-related criminal activity during a reasonable
period, as determined by the PHA, before admission to the PHA's public
housing program.
(3) The PHA standards must prohibit admission to the PHA's public
housing program if any household member has been evicted from federally
assisted housing for drug-related criminal activity. This prohibition
applies during a reasonable period, as determined by the PHA, which is
at least three years from the date of the judicial determination
authorizing the eviction. However, the PHA may admit the household if
the PHA determines:
(i) That the evicted household member who engaged in drug-related
criminal activity has successfully completed a supervised drug
rehabilitation program approved by the PHA; or
(ii) That the circumstances leading to the eviction no longer exist
(for example, the criminal household member has died or is imprisoned).
(4) The PHA must establish standards that permanently prohibit
admission to the PHA's public housing program if any household member
has ever been convicted of drug-related criminal activity for
manufacture or production of methamphetamine on the premises of
federally assisted housing.
(b) Prohibiting admission of other criminals. (1) The PHA may
prohibit admission of a household to the PHA's public housing program,
under standards established by the PHA, if the PHA determines that any
household member is currently engaging in or has engaged in:
(i) Violent criminal activity; or
(ii) Other criminal activity which may threaten the health or
safety of, or the right to peaceful enjoyment of the premises by, other
residents; or
(iii) Other criminal activity which may threaten the health or
safety of PHA management staff, or persons performing management
functions on behalf of the PHA (including a PHA employee or a PHA
contractor, subcontractor or agent).
(2) The PHA may require the family to submit sufficient evidence,
as determined by the PHA, that the

[[Page 40276]]

members of the household have not engaged in such criminal activity
during a reasonable period, as determined by the PHA, before admission
to the PHA's public housing program.
(3) The PHA must establish standards that prohibit admission to the
PHA's public housing program if any member of the household is subject
to a lifetime registration requirement under a State sex offender
registration program. In screening of applicants, the PHA must perform
criminal history background checks necessary to determine whether any
household member is subject to a lifetime sex offender registration
requirement.
(c) Prohibiting admission of alcohol abusers. The PHA must
establish standards that prohibit admission to the PHA's public housing
program if the PHA determines that it has reasonable cause to believe
that abuse or pattern of abuse of alcohol by a household member may
threaten the health or safety of, or right to peaceful enjoyment of the
premises by, other public housing residents.
(d) Evidence of criminal activity. The PHA may deny admission for
criminal activity by a household member as authorized in this section
if the PHA determines that the household member has engaged in the
criminal activity, regardless of whether the household member has been
arrested or convicted for such activity.
(e) Criminal records. Before a PHA denies admission to the PHA's
public housing program on the basis of a criminal record, the PHA must
provide the household with a copy of the criminal record and an
opportunity to dispute the accuracy and relevance of that record.
(f) Drug use and alcohol abuse: PHA discretion. (1) Consideration
of rehabilitation. In determining whether to deny admission to the
PHA's public housing program for illegal drug use or a pattern of
illegal drug use by a household member who is no longer engaging in
such use, or for abuse or pattern of abuse of alcohol by a household
member who is no longer engaging in such abuse, the PHA may consider
whether such household member is participating in or has successfully
completed a supervised drug or alcohol rehabilitation program, or has
otherwise been rehabilitated successfully.
(2) Conditions for admission. In determining whether to deny
admission to the PHA's public housing program for illegal drug use by a
household member, or for alcohol abuse by a household member, the PHA
may impose, as a condition of admission to, and continued assistance
in, the PHA's public housing program for other family members, a
requirement that the household member who engaged in or is culpable for
the drug use or alcohol abuse may not reside in the unit.
(3) Submission of evidence. The PHA may require a household member
who has engaged in the illegal use of a drug (as defined in Sec. 5.100
of this title), or in alcohol abuse that affected the health or safety
of, or the right to peaceful enjoyment of the premises by, other
residents, to submit evidence of current participation in, or
successful completion of, a supervised drug or alcohol rehabilitation
program as a condition to being allowed to reside in the unit.

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

(a) Purpose. This section implements section 6(u) of the 1937 Act
(42 U.S.C. 1437d(u)) on requesting and obtaining information from drug
abuse treatment facilities concerning applicants. The provisions of
this section do not apply to information requested or obtained from
drug abuse treatment facilities other than under section 6(u).
(b) Additional definitions (for purposes of this section).
(1) Currently engaging in illegal drug use. Illegal drug use
occurred recently enough to justify a reasonable belief that continuing
illegal drug use by a household member is a real and ongoing problem.
(2) Drug abuse treatment facility. An entity:
(i) That holds itself out as providing, and provides, diagnosis,
treatment, or referral for treatment with respect to the illegal drug
use; and
(ii) That is either an identified unit within a general care
facility; or an entity other than a general medical care facility.
(c) Authorization by household member for PHA to receive
information from a drug abuse treatment facility. (1) The PHA may
require the family to submit for any household member who is at least
18 years of age, and for each family head or spouse regardless of age a
consent form signed by such household member that:
(i) Requests any drug abuse treatment facility to inform the PHA
whether the drug abuse treatment facility has reasonable cause to
believe that the household member is currently engaging in illegal drug
use;
(ii) Authorizes the PHA to receive such information from the drug
treatment facility, and to utilize such information in determining
whether to prohibit admission of the household member to the PHA's
public housing program in accordance with Sec. 960.203.
(2) The consent form submitted for a proposed household member must
expire automatically after the PHA has made a final decision to either
approve or deny the admission of such person.
(d) PHA request for information from drug use treatment facility.
(1) The PHA may request that a drug abuse treatment facility disclose
whether the drug abuse treatment facility has reasonable cause to
believe that the proposed household member is currently engaging in the
illegal use of a drug (as defined in Sec. 5.100 of this title).
(2) The PHA's request to the drug abuse treatment facility must
include a copy of the consent form signed by the proposed household
member.
(3) Subject to section 543 of the Public Health Service Act (42
U.S.C. 290dd-2), the drug abuse treatment facility is required to
provide the information requested by the PHA in accordance with
paragraph (d)(1) of this section.
(4) A drug abuse treatment facility is not liable for damages based
on any information required to be disclosed under this section if such
disclosure is consistent with section 543 of the Public Health Service
Act (42 U.S.C. 290dd-2).
(5) The PHA is not obligated to request information from a drug
treatment facility under this section, and is not liable for damages
for failing to request or receive such information.
(6) A drug abuse treatment facility may charge the PHA a reasonable
fee for information provided under this section.
(e) Prohibition of discriminatory treatment of applicants. (1) A
PHA may request information from a drug abuse treatment facility under
paragraph (d) of this section only if the PHA has adopted and has
consistently implemented either of the following policies:
(i) Policy A--Request for all families. Under Policy A, the PHA
must submit a request for information to a drug abuse treatment
facility in accordance with paragraph (d) of this section before
admitting any family to the PHA's public housing program. For each such
family, the request must be submitted for each proposed household
member described in paragraph (c)(3) of this section.
(ii) Policy B--Request for certain household members. Under Policy
B, the PHA must submit a request to a drug abuse treatment facility
only with respect to each proposed household member:
(A) Whose criminal record indicates prior arrest or conviction for
any

[[Page 40277]]

criminal activity that may be a basis for denial of admission under
Sec. 960.203; or
(B) Whose prior tenancy records indicate that the proposed
household member:
(1) Engaged in the destruction of property;
(2) Engaged in violent activity against another person; or
(3) Interfered with the right of peaceful enjoyment of the premises
of other residents.
(2) The policy adopted by the PHA must be included in the PHA
administrative plan and the PHA plan.
(f) Records management and confidentiality. (1) Each PHA that
receives information from a drug abuse treatment facility under this
section must establish and implement a system of records management
that ensures that any information which the PHA receives from the drug
abuse treatment facility about a person:
(i) Is maintained confidentially in accordance with section 543 of
the Public Health Service Act (12 U.S.C. 290dd-2);
(ii) Is not misused or improperly disseminated; and
(iii) Is destroyed, as applicable:
(A) Not later than 5 business days after the PHA admits the person
as a household member under the PHA's public housing program; or
(B) If the PHA denies the admission of such person as a household
member, in a timely manner after the date on which the statute of
limitations for the commencement of a civil action based upon that
denial of admissions has expired.

PART 966--PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE

23a. Revise the heading for part 966 to read as set forth above.
24. The authority citation for part 966 is revised to read as
follows:

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

25. Revise Sec. 966.1 to read as follows:

Sec. 966.1 Purpose and applicability.

(a) This part is applicable to public housing.
(b) Subpart A of this part prescribes the provisions that must be
incorporated in leases for public housing dwelling units.
(c) Subpart B of this part prescribes public housing grievance
hearing requirements.
26. Add a new Sec. 966.2 to read as follows:

Sec. 966.2 Definitions.

(a) Terms found elsewhere. The following terms are defined in part
5, subpart A of this title: 1937 Act, drug, drug-related criminal
activity, HUD, public housing, public housing agency, Section 8,
violent criminal activity.
(b) Additional terms (for purposes of this part).
Covered person. A resident, any member of the resident's household,
a guest or another person under the resident's control.
Federally assisted housing means housing assisted under any of the
following programs:
(1) Public housing;
(2) Housing receiving project-based or tenant-based assistance
under Section 8 (42 U.S.C. 1437f);
(3) Housing that is assisted under section 202 of the Housing Act
of 1959 as amended by section 801 of National Affordable Housing Act)
(12 U.S.C. 1701q);
(4) Housing that is assisted under section 202 of the Housing Act
of 1959, as such section existed before the enactment of the National
Affordable Housing Act;
(5) Housing that is assisted under section 811 of the National
Affordable Housing Act (42 U.S.C. 8013);
(6) Housing financed by a loan or mortgage insured under section
221(d)(3) of the National Housing Act (12 U.S.C. 1715l(d)(3)) that
bears interest at a rate determined under the proviso of section
221(d)(5) of such Act (12 U.S.C. 1715l(d)(5));
(7) Housing insured, assisted, or held by HUD or by a State or
State agency under section 236 of the National Housing Act (12 U.S.C.
1715z-1); or
(8) Housing assisted by the Rural Development Administration under
section 514 or section 515 of the Housing Act of 1949 (42 U.S.C. 1483,
1484).
Household. The family and any PHA-approved live-in aide.
Premises. The building or complex in which the public housing
dwelling unit is located, including common areas and grounds.
27. In Sec. 966.4, redesignate paragraph (l)(5) as paragraph
(l)(6), revise paragraphs (f)(12), (l)(2) and (l)(3)(i), and add new
paragraph (l)(5) to read as follows:

Sec. 966.4 Lease requirements.

* * * * *
(f) * * *
(12)(i) To assure that no covered person engages in:
(A) Any criminal activity that threatens the health, safety or
right to peaceful enjoyment of the premises by other residents; or
(B) Any drug-related criminal activity on or off the premises.
(ii) To assure that no member of the household engages in an abuse
or pattern of abuse of alcohol that affects the health, safety, or
right to peaceful enjoyment of the premises by other residents.
* * * * *
(l) * * *
(2) Grounds for termination of tenancy. The PHA may terminate the
tenancy for any of the following grounds:
(i) Serious or repeated violation of the lease. Serious violation
includes, but is not limited to:
(A) Failure to pay rent or other payments due under the lease; or
(B) Violation of household obligations as described in paragraph
(f) of this section;
(ii) Criminal activity or alcohol abuse as provided in paragraph
(l)(5) of this section; or
(iii) Other good cause. Other good cause includes, but is not
limited to:
(A) Criminal or other activity by a member of the household that
threatens the health or safety of other public housing residents or of
persons residing in the immediate vicinity of the premises; or
(B) Criminal or other activity by a member of the household that
threatens the health or safety of PHA management staff.
(3) Lease termination notice. (i) The PHA must give written notice
of lease termination of:
(A) 14 days in the case of failure to pay rent;
(B) A reasonable period of time considering the seriousness of the
situation (but not to exceed 30 days):
(1) If the health or safety of other residents, PHA employees, or
persons residing in the immediate vicinity of the premises is
threatened; or
(2) If any member of the household has engaged in any drug-related
criminal activity or violent criminal activity; or
(3) If any member of the household has been convicted of a felony;
(C) 30 days in any other case, except that if a State or local law
allows a shorter notice period, such shorter period shall apply.
* * * * *
(5) When the PHA may terminate tenancy for criminal activity or
alcohol abuse by household members.--(i) Evicting drug criminals. (A)
Drug crime on or off the premises. The lease must provide that the PHA
may terminate the tenancy if any covered person has engaged in any
drug-related criminal activity on or off the premises, including cases
where:

[[Page 40278]]

(1) A covered person has engaged in drug-trafficking; or
(2) A covered person has engaged in illegal drug use (including
cases where the PHA determines that illegal drug use or a pattern of
illegal drug use by a household member may threaten the health or
safety of, or the right to peaceful enjoyment of the premises by, other
residents).
(B) Methamphetamine conviction. The PHA must immediately terminate
the tenancy if the PHA determines that any member of the household has
ever been convicted of drug-related criminal activity for manufacture
or production of methamphetamine on the premises of federally assisted
housing.
(ii) Evicting other criminals. (A) Threat to other residents. The
lease must provide that any criminal activity by a covered person that
threatens the health or safety of, or the right to peaceful enjoyment
of the premises by, other residents (including PHA management staff
residing on the premises) is grounds for termination of tenancy.
(B) Fugitive felon or parole violator. The PHA may terminate the
tenancy if a member of the household is:
(1) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(2) Violating a condition of probation or parole imposed under
Federal or State law.
(iii) Evidence of criminal activity. The PHA may terminate tenancy
for criminal activity by a household member if the PHA determines that
the household member has engaged in the criminal activity, regardless
of whether the household member has been arrested or convicted for such
activity.
(iv) Use of criminal record. If the PHA seeks to terminate the
tenancy for criminal activity as shown by a criminal record, the PHA
must provide the tenant with a copy of the criminal record before a PHA
grievance hearing or court trial concerning the termination of tenancy
or eviction, and the tenant must be given an opportunity to dispute the
accuracy and relevance of that record in the grievance hearing or court
trial.
(v) Evicting alcohol abusers. The PHA must establish standards that
allow termination of tenancy if the PHA determines that a household
member has engaged in abuse or pattern of abuse of alcohol that
threatens the health or safety of, or the right to peaceful enjoyment
of the premises by, other residents.
(vi) Drug use and alcohol abuse: PHA discretion. (A) Consideration
of rehabilitation. In determining whether to terminate tenancy for
illegal drug use or a pattern of illegal drug use by a household member
who is no longer engaging in such use, or for abuse or pattern of abuse
of alcohol by a household member who is no longer engaging in such
abuse, the PHA may consider whether such household member is
participating in or has successfully completed a supervised drug or
alcohol rehabilitation program.
(B) Conditions for continued assistance. (1) In determining whether
to terminate tenancy for illegal drug use by a household member, or for
alcohol abuse by a household member, the PHA may impose, as a condition
of continued assistance for other household members, a requirement that
any household member who engaged in or is culpable for the drug use or
alcohol abuse may not reside in the unit.
(2) The PHA may require a household member who has engaged in the
illegal use of a drug (as defined in Sec. 5.100 of this title), or in
alcohol abuse that threatened the health or safety of, or the right to
peaceful enjoyment of the premises by, other residents, to submit
evidence of current participation in, or successful completion of, a
supervised drug or alcohol rehabilitation program as a condition to
being allowed to reside in the unit.
* * * * *
28. In Sec. 966.51, revise paragraphs (a)(2)(i)(A) and (a)(2)(i)(B)
and add paragraph (a)(2)(i)(C) to read as follows:

Sec. 966.51 Applicability.

(a) * * *
(2)(i) * * *
(A) Any criminal activity that threatens the health, safety or
right to peaceful enjoyment of the premises of other residents or
employees of the PHA;
(B) Any violent or drug-related criminal activity on or near such
premises; or
(C) Any criminal activity that resulted in felony conviction of a
household member.
* * * * *

PART 982--SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER
PROGRAM

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

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

30. Amend Sec. 982.4 as follows:
a. Remove the definitions of drug-related criminal activity, drug-
trafficking, and violent criminal activity from paragraph (b);
b. Add definitions of ``covered person'' and ``household'' to
paragraph (b), in alphabetical order; and
c. Revise paragraph (a)(2) to read as follows:

Sec. 982.4 Definitions.

(a) * * *
(2) Terms found elsewhere. The following terms are defined in part
5, subpart A of this title: 1937 Act, drug, drug-related criminal
activity, federally assisted housing, MSA, HUD, public housing, Section
8, and violent criminal activity.
* * * * *
(b) * * *
Covered person. A resident, any member of the resident's household,
a guest or another person under the resident's control.
* * * * *
Household. The family and any PHA-approved live-in aide.
* * * * *
31. In Sec. 982.54, add a new paragraph (d)(4)(iii) to read as
follows:

Sec. 982.54 Administrative plan.

* * * * *
(d) * * *
(4) * * *
(iii) Standards for denying admission or terminating assistance
based on criminal activity or alcohol abuse in accordance with
Sec. 982.553;
* * * * *
32. In Sec. 982.310, revise paragraph (c) to read as follows:

Sec. 982.310 Owner termination of tenancy.

* * * * *
(c) Criminal activity.--(1) Evicting drug criminals.--(i) Drug
crime on or near the premises. During the term of the lease, the owner
may terminate tenancy if any covered person has engaged in any drug-
related criminal activity on or near the premises, including cases
where:
(A) A covered person has engaged in drug-trafficking; or
(B) A covered person has engaged in illegal use of a drug, as
defined in Sec. 5.100 of this title, (including cases where the owner
determines that illegal use or pattern of illegal use of a drug by a
household member may threaten the health or safety of, or the right to
peaceful enjoyment of the premises by, other residents).
(2) Evicting other criminals.--(i) Threat to other residents.
During the term of the lease, the owner may terminate tenancy for any
of the following types of criminal activity by a covered person:

[[Page 40279]]

(A) Any criminal activity that threatens the health or safety of,
or the right to peaceful enjoyment of the premises by, other residents
(including property management staff residing on the premises);
(B) Any criminal activity that threatens the health, safety of, or
the right to peaceful enjoyment of their residences by, persons
residing in the immediate vicinity of the premises; or
(C) Any violent criminal activity on or near the premises.
(ii) Fugitive felon or parole violator. During the term of the
lease, the owner may terminate the tenancy if a member of the household
is:
(A) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(B) Violating a condition of probation or parole imposed under
Federal or State law.
(3) Evidence of criminal activity. The owner may terminate tenancy
for criminal activity by a family member if the owner determines that
the household member has engaged in the criminal activity, regardless
of whether the household member has been arrested or convicted for such
activity.
* * * * *
33. Amend Sec. 982.551 by redesignating paragraph (m) as paragraph
(n); adding a new paragraph (m); and revising paragraph (l) to read as
follows:

Sec. 982.551 Obligations of participant.

* * * * *
(l) Crime by household members. The members of the household may
not engage in drug-related criminal activity or violent criminal
activity or other criminal activity that threatens the health, safety
or right to peaceful enjoyment of other residents and persons residing
in the immediate vicinity of the premises (see Sec. 982.553).
(m) Alcohol abuse by household members. The members of the
household must not abuse alcohol in a way that threatens the health,
safety or right to peaceful enjoyment of other residents and persons
residing in the immediate vicinity of the premises.
* * * * *
34. Amend Sec. 982.552 as amended at 64 FR 26650 effective August
12, 1999, by revising paragraphs (b)(1), (b)(2), and (c)(3), and by
adding paragraph (c)(1)(xi), to read as follows:

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

* * * * *
(b) Requirement to deny admission or terminate assistance. (1) The
PHA may deny admission to the program for a reasonable time period
determined by the PHA if any household member has been evicted from
federally assisted housing for serious violation of the lease (other
than eviction for drug-related criminal activity. For provisions on
eviction for drug-related criminal activity, see Sec. 982.553).
(2) The PHA may terminate program assistance for a household
evicted from housing assisted under the program for serious violation
of the lease (other than an eviction for drug-related criminal
activity).
* * * * *
(c) Authority to deny admission or terminate assistance.
(1) * * *
(xi) For denial or termination of assistance for crime or alcohol
abuse by household members, see Sec. 982.553.
* * * * *
(3) Exclusion of family members. In determining whether to deny
admission or terminate assistance in accordance with paragraphs (c)(1)
or (c)(2) of this section, the PHA may impose, as a condition of
continued assistance for other family members, a requirement that
family members who participated in or were culpable for the action or
failure will not reside in the unit. The PHA may permit the other
members of a participant family to continue receiving assistance.
* * * * *
35. Revise Sec. 982.553 to read as follows:

Sec. 982.553 Denial of admission or termination of assistance for
criminals and alcohol abusers.

(a) Requirement to deny admission.--(1) Prohibiting admission of
drug criminals. (i) The PHA must establish standards that prohibit
admission of a household to the program if:
(A) the PHA determines that any household member is currently
engaging in or has engaged in drug-related criminal activity; or
(B) the PHA determines that it has reasonable cause to believe that
illegal drug use or a pattern of illegal drug use by a household member
may adversely affect the health, safety, or right to peaceful enjoyment
of the premises by other residents.
(ii) The PHA may require the household to submit sufficient
evidence, as determined by the PHA, that the members of the household
have not engaged in drug-related criminal activity during a reasonable
period, as determined by the PHA, before admission to the program.
(iii) The PHA must prohibit admission to the program if any
household member has been evicted from federally assisted housing for
drug-related criminal activity. This prohibition applies during a
reasonable period, as determined by the PHA, which is at least three
years from the date of the judicial determination authorizing the
eviction. The PHA may admit a household if the PHA determines:
(A) That the evicted household member who engaged in drug-related
criminal activity has successfully completed a supervised drug
rehabilitation program approved by the PHA; or
(B) That the circumstances leading to eviction no longer exist (for
example, the criminal household member has died or is imprisoned).
(iv) The PHA must establish standards that permanently prohibit
admission to the program if any household member has ever been
convicted of drug-related criminal activity for manufacture or
production of methamphetamine on the premises of federally assisted
housing.
(2) Prohibiting admission of other criminals. (i) The PHA may
prohibit admission of a household to the program if the PHA determines
that any household member is currently engaged in or has engaged in:
(A) Violent criminal activity;
(B) Other criminal activity which may threaten the health or safety
of, or the right to peaceful enjoyment of the premises by, other
residents;
(C) Other criminal activity which may threaten the health or safety
of the owner, property management staff, or persons performing a
contract administration function or responsibility on behalf of the PHA
(including a PHA employee or a PHA contractor, subcontractor or agent).
(ii) The PHA may require the household to submit sufficient
evidence, as determined by the PHA, that the members of the household
have not engaged in such criminal activity during a reasonable period,
as determined by the PHA, before admission to the program.
(iii) The PHA must establish standards that prohibit admission to
the program if any member of the household is subject to a lifetime
registration requirement under a State sex offender registration
program. In screening of applicants, the PHA must perform criminal
history background checks necessary to determine whether any household
member is subject to a lifetime sex offender registration requirement.

[[Page 40280]]

(3) Prohibiting admission of alcohol abusers. The PHA must
establish standards that prohibit admission to the program if the PHA
determines that it has reasonable cause to believe that abuse or
pattern of abuse of alcohol by a household member may adversely affect
the health or safety of, or the right to peaceful enjoyment of the
premises by, other residents.
(b) Terminating assistance.--(1) Terminating assistance for drug
criminals.--(i) Standards. The PHA must establish standards that allow
the PHA to terminate assistance for a family under the program if the
PHA determines that any household member has engaged in drug-related
criminal activity.
(ii) Methamphetamine conviction--termination of assistance. The PHA
must immediately terminate assistance for a family under the program if
the PHA determines that any member of the household has ever been
convicted of drug-related criminal activity for manufacture or
production of methamphetamine on the premises of federally assisted
housing.
(2) Terminating assistance for other criminals.--(i) Standards. The
PHA must establish standards that allow the PHA to terminate assistance
for a family if the PHA determines that any household member has
engaged in violent criminal activity.
(ii) Fugitive felon or parole violator. The lease must provide that
the PHA may terminate assistance for a family if the PHA determines
that a member of the household is:
(A) Fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime, or attempt to commit a crime, that is a felony
under the laws of the place from which the individual flees, or that,
in the case of the State of New Jersey, is a high misdemeanor; or
(B) Violating a condition of probation or parole imposed under
Federal or State law.
(3) Terminating assistance for alcohol abusers. The PHA must
establish standards that allow termination of assistance for a family
if the PHA determines that household member has engaged in abuse or
pattern of abuse of alcohol that threatens the health or safety of, or
the right to peaceful enjoyment of the premises by, other residents.
(c) Evidence of criminal activity. The PHA may deny admission or
terminate assistance for criminal activity by a household member as
authorized in this section if the PHA determines that the household
member has engaged in the criminal activity, regardless of whether the
household member has been arrested or convicted for such activity.
(d) Use of criminal record. If a PHA proposes to deny admission for
criminal activity as shown by a criminal record, the PHA must provide
the family with a copy of the criminal record before a PHA informal
review of such decision in accordance with Sec. 982.554. If a PHA
proposes to terminate assistance for criminal activity as shown by a
criminal record, the PHA must provide the family with a copy of the
criminal record before a PHA hearing in accordance with Sec. 982.554.
The family must be given an opportunity to dispute the accuracy and
relevance of that record. For denial of admission, the PHA must provide
such opportunity in the informal review process in accordance with
Sec. 982.554. For termination of assistance, the PHA must provide such
opportunity in accordance with Sec. 982.555.
(e) Drug use or alcohol use: PHA discretion. (1) Consideration of
rehabilitation. In determining whether to deny admission or terminate
assistance for illegal drug use by a household member who is no longer
engaging in such use, or for alcohol abuse by a household member who is
no longer engaging in such abuse, the PHA may consider whether the
household member is participating in or has successfully completed a
supervised drug or alcohol rehabilitation program, or has otherwise
been rehabilitated successfully.
(2) Conditions for admission or continued assistance. (i) In
determining whether to deny admission or terminate assistance for
illegal use of a drug by a household member, or for alcohol abuse by a
household member, the PHA may impose, as a condition of admission to,
or continued assistance in the program for other family members, a
requirement that the family member who engaged in or is culpable for
such use or abuse may not reside in the unit.
(ii) The PHA may require a household member who has engaged in the
illegal use of a drug (as defined in Sec. 5.100 of this title), or in
alcohol abuse that threatened the health or safety of, or the right to
peaceful enjoyment of the premises by, other residents, to submit
evidence of current participation in, or successful completion of, a
supervised drug or alcohol rehabilitation program as a condition of
continued assistance.

Dated: July 16, 1999.
Andrew Cuomo,
Secretary.
[FR Doc. 99-18801 Filed 7-22-99; 8:45 am]
BILLING CODE 4210-32-P

Visit the Official Version

Document Information

Published:: 07/23/1999
Department:: Housing and Urban Development Department
Entry Type:: Proposed Rule
Action:: Proposed rule.
Document Number:: 99-18801
Pages:: 40262-40280 (19 pages)
Docket Numbers:: Docket No. FR-4495-P-01
RINs:: 2501-AC63: Screening and Eviction for Drug Abuse and Other Criminal Activity (FR-4495)
RIN Links:: https://www.federalregister.gov/regulations/2501-AC63/screening-and-eviction-for-drug-abuse-and-other-criminal-activity-fr-4495-
PDF File:: 99-18801.pdf
CFR: (42): 24 CFR 5.903.); 24 CFR 5.854(c); 24 CFR 5.100; 24 CFR 5.851; 24 CFR 5.852; More ...