[Federal Register Volume 60, Number 98 (Monday, May 22, 1995)]
[Proposed Rules]
[Pages 27058-27060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12461]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 10 and 966
[Docket No. R-95-1772; FR-3819-P-01]
RIN 2501-AB92
Public Housing Lease and Grievance Procedures
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
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SUMMARY: HUD is proposing to amend its regulations governing eviction
from public and Indian housing. If HUD determines that local law
requires a pre-eviction due process hearing in court (known as a ``due
process determination''), a tenant is not entitled to a hearing by the
housing authority before eviction for drug-related or other criminal
activity. This proposed rule would clarify that HUD is not required to
use notice and comment rulemaking procedures for issuance of a due
process determination.
DATES: Comments due date: July 21, 1995.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Office of General Counsel, Rules Docket
Clerk, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410-0500. Communications should
refer to the above docket number and title and to the specific sections
in the regulation. Facsimile (FAX) comments are not acceptable. A copy
of each communication submitted will be available for public inspection
and copying during regular business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Sherone Ivey, Acting Director,
Occupancy Division, Room 4206, Department of Housing and Urban
Development, 451 Seventh Street, SW., Washington, DC 20410; Telephone
numbers (202) 708-0744; (202) 708-0850 (TDD). (These are not toll-free
numbers.)
SUPPLEMENTARY INFORMATION:
I. Issuance of Due Process Determination
This proposed rule would clarify that HUD is not required to use
HUD's notice and comment rulemaking procedures when HUD determines that
the law of a jurisdiction requires a due process court hearing before
eviction of a public housing tenant.
Under 42 U.S.C. 1437d(k), a housing authority is generally required
to provide a tenant with the opportunity for an administrative hearing
before the commencement of eviction proceedings in the local landlord-
tenant courts. However, the statute and the implementing HUD
regulations at 24 CFR part 966 permit the housing authority to bypass
the administrative hearing for evictions involving a tenant engaged in
certain criminal activity.
Specifically, 24 CFR 966.51 requires that the eviction involve
``any drug-related criminal activity'' or ``[a]ny criminal activity
that threatens the health, safety or right to peaceful enjoyment of the
premises'' of the public housing residents and employees. Furthermore,
HUD must first determine that the law of the jurisdiction requires a
pre-eviction court hearing that provides the basic elements of due
process as further defined by 24 CFR 966.53(c). This determination is
known as a ``due process determination.'' (24 CFR 966.51(2)(i)).
[[Page 27059]]
HUD has voluntarily chosen to provide for public participation in
rulemaking for HUD programs and functions. Under 24 CFR part 10, HUD
invites public comment on the proposed rules it publishes in the
Federal Register. In HUD's view, the issuance of a particular due
process determination is not a rule, and is not subject to part 10's
notice and comment rulemaking requirements. HUD's due process
determinations are not discretionary ``policy'' determinations
permitting public housing authorities to bypass the grievance process;
rather, a due process determination is an application of an existing
regulation to the law of a specific jurisdiction. In accordance with
HUD's function as defined by federal law, HUD determines whether the
State or local law governing local eviction procedures are consistent
with the elements of due process as further defined in Sec. 966.53(c).
Up to this time, all HUD due process determinations have been
issued by letter to the governor of each affected State. The HUD
determinations were not published as regulations through notice and
comment rulemaking under part 10 because HUD did not view them to be
rules within the meaning of part 10. However, in its recent decision in
Yesler Terrace Community Council v. Cisneros, the Ninth Circuit held
that the due process determination for the State of Washington was a
rule under part 10, and that the part 10 notice and comment rulemaking
procedures therefore applied.
Although the decision in the Yesler case only concerns due process
determinations for the State of Washington, HUD recognizes that Ninth
Circuit courts are bound by the precedent established by this case. For
this reason, public housing authorities in the States comprising the
Ninth Circuit cannot rely on the HUD due process determinations issued
for those States.
In addition, even for jurisdictions outside the Ninth Circuit, the
decision in the Yesler case will inevitably lead to dispute and
litigation as to the ability of public housing authorities to bypass
the administrative grievance process pursuant to a HUD due process
determination. In and out of the Ninth Circuit therefore, the Yesler
decision will inevitably impede the efforts of housing authorities to
speedily evict tenants engaged in serious criminal activities.
To remedy this serious situation, HUD proposes to amend 24 CFR part
10 to state unambiguously and explicitly that the part 10 notice and
comment rulemaking procedures do not apply to a public housing due
process determination. Since the Yesler decision was explicitly based
on the court's reading of the HUD part 10 regulation, the proposed rule
would remove the legal and practical uncertainties proceeding from this
decision.
In addition, this rule would amend HUD's public housing lease and
grievance regulations to confirm that HUD is not required to utilize
part 10's notice and comment procedures for the issuance of due process
determinations. This proposed rule would also provide that for guidance
of the public, HUD will publish in the Federal Register a notice
listing the judicial eviction procedures for which HUD has issued a due
process determination. HUD will make available for public inspection
and copying, a copy of the legal analysis on which the due process
determinations are based.
II. Eviction by Administrative Action
The rule currently provides that the PHA may evict the tenant
``only by bringing a court action'' (24 CFR 966.4(l)(4)). HUD proposes
to amend the rule by providing that the PHA may also elect to evict the
tenant by bringing an administrative action. The PHA may evict without
bringing a court action if the law of the jurisdiction permits eviction
by administrative action, after a due process administrative hearing,
but does not require a court determination of the rights and
liabilities of the parties. (Proposed 24 CFR 966.4(l)(4)(ii)).
This amendment is intended to avoid the necessity for duplicative
administrative and judicial hearings where State or local law allows a
PHA to evict a tenant after a due process administrative hearing, but
does not require a court hearing or court process to carry out the
eviction. The proposed rule would provide that in order to evict
without bringing a court action, the PHA must afford the tenant the
opportunity for a pre-eviction hearing in accordance with the PHA
grievance procedure. The right to a hearing under the grievance
procedure as defined by Federal statute and regulation grants a tenant
the opportunity for a due process administrative hearing.
The Department is informed that under Hawaii State law, the Hawaii
Housing Authority may evict a tenant after providing a due process
administrative hearing. Hawaii State law does not require the Authority
to bring a judicial action for eviction of a tenant. However, under
HUD's current rule, the Authority may ``only'' evict the tenant by
bringing a judicial action. Thus the Authority must both provide the
opportunity for an administrative hearing in accordance with Hawaii
law, and then bring a separate judicial action for eviction of the
tenant in accordance with the HUD rule.
HUD's current rule was intended to assure that public housing
tenants may not be evicted without the opportunity for a fair and full
hearing, and to preclude ``self-help'' eviction by the PHA landlord,
without the opportunity for such a hearing. HUD believes that the
administrative hearing required by Hawaii law, and the law of any other
State with analogous procedures, can protect the due process rights of
the tenant. Consequently, the Department is amending the regulation to
permit eviction without judicial action to determine the rights of the
parties. Such eviction is only allowed as permitted by local law, and
where the PHA provides the opportunity for a pre-eviction hearing under
the PHA grievance procedures.
III. Regulatory Reinvention
Consistent with Executive Order 12866, and President Clinton's
memorandum of March 4, 1995 to all Federal Departments and Agencies on
the subject of Regulatory Reinvention, the Department is reviewing all
its regulations to determine whether certain regulations can be
eliminated, streamlined or consolidated with other regulations. As part
of this review, this proposed rule, at the final rule stage, may
undergo revisions in accordance with the President's regulatory reform
initiatives. In addition to comments on the substance of these
regulations, the Department welcomes comments on how this proposed rule
may be made more understandable and less burdensome.
IV. Other Matters
A. Impact on the Environment
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations,
the policies contained and procedures contained in this proposed rule
relate only to HUD administrative procedures and, therefore, are
categorically excluded from the requirements of the National
Environmental Policy Act.
B. Federalism Impact
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule would not have substantial direct
effects on States or their political subdivisions, or the relationship
between the Federal [[Page 27060]] government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
The policies contained in this proposed rule merely require that
HUD determine whether pre-eviction court hearings required by the local
jurisdiction provide the basic elements of due process as further
defined by HUD regulation. Those housing authorities situated in
jurisdictions for which HUD has made such a due process determination
are permitted to bypass HUD-mandated administrative hearings and to
rely exclusively on the local courts.
This proposed rule would provide that HUD is not required to use 24
CFR part 10's notice and comment procedures for the issuance of due
process determinations. This proposed rule would effect no changes in
the current relationships between the Federal government, the States
and their political subdivisions.
C. Impact on the Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule will
not have potential for significant impact on family formation,
maintenance, and general well-being, and, thus, is not subject to
review under this order. No significant change in existing HUD policies
or programs will result from promulgation of this proposed rule, as
those policies and programs relate to family concerns.
D. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605 (b)) has reviewed and approved this proposed rule, and in so
doing certifies that this proposed rule will not have a significant
impact on a substantial number of small entities. This proposed rule
would merely provide for HUD's issuance of due process determinations
without public notice and comment, and would not have any meaningful
economic impact on any entity.
E. Regulatory Agenda
This proposed rule was listed as item 1370 in HUD's Semiannual
Agenda of Regulations published on May 8, 1995 (60 FR 23368, 23375) in
accordance with Executive Order 12866 and the Regulatory Flexibility
Act.
F. Executive Order 12866
This proposed rule was reviewed by the Office of Management and
Budget under Executive Order 12866, Regulatory Planning and Review. Any
changes made to the proposed rule as a result of that review are
clearly identified in the docket file, which is available for public
inspection in the Office of the Department's Rules Docket Clerk, Room
10276, 451 Seventh St., S.W., Washington, DC, 20410.
List of Subjects
24 CFR Part 10
Administrative practice and procedure.
24 CFR Part 966
Grant programs--housing and community development, Public housing.
Accordingly, 24 CFR parts 10 and 966 are proposed to be amended as
follows:
PART 10--RULEMAKING: POLICY AND PROCEDURES
1. The authority citation for part 10 would be revised to read as
follows:
Authority: 42 U.S.C. 3535(d).
2. Section 10.3 would be amended by adding a new paragraph (c) to
read as follows:
Sec. 10.3 Applicability.
* * * * *
(c) This part is not applicable to a determination by HUD under 24
CFR part 966 (public housing) or 24 CFR part 905 (Indian housing) that
the law of a jurisdiction requires that, prior to eviction, a tenant be
given a hearing in court which provides the basic elements of due
process (``due process determination'').
PART 966--LEASE AND GRIEVANCE PROCEDURES
3. The authority citation for part 966 would be revised to read as
follows:
Authority: 42 U.S.C. 1437a, 1437d, 1437d(k), (1), and (n), and
3535(d).
4. In Sec. 966.4, paragraph (l)(4) would be revised, to read as
follows:
Sec. 966.4 Lease requirements.
* * * * *
(l) * * *
(4) How tenant is evicted. The PHA may evict the tenant from the
unit either:
(i) By bringing a court action, or;
(ii) By bringing an administrative action if law of the
jurisdiction permits eviction by administrative action, after a due
process administrative hearing, and without a court determination of
the rights and liabilities of the parties. In order to evict without
bringing a court action, the PHA must afford the tenant the opportunity
for a pre-eviction hearing in accordance with the PHA grievance
procedure.
* * * * *
5. In Sec. 966.51, paragraph (a)(2) would be amended by
redesignating paragraph (a)(2)(ii) as paragraph (a)(2)(iv) and by
adding new paragraphs (a)(2)(ii) and (a)(2)(iii), to read as follows:
Sec. 966.51 Applicability.
(a) * * *
(2) * * *
(ii) The issuance of a due process determination by HUD is not
subject to 24 CFR part 10, and HUD is not required to use notice and
comment rulemaking procedures in considering or issuing a due process
determination.
(iii) For guidance of the public, HUD will publish in the Federal
Register a notice listing the judicial eviction procedures for which
HUD has issued a due process determination. HUD will make available for
public inspection and copying a copy of the legal analysis on which the
determinations are based.
* * * * *
Dated: February 14, 1995.
Henry G. Cisneros,
Secretary.
[FR Doc. 95-12461 Filed 5-19-95; 8:45 am]
BILLING CODE 4210-32-P
