[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