28776 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

24 CFR Parts 5, 200, 247, 880, 882, 884,

891, 960, 966, and 982

[Docket No. FR–4495–F–02]

RIN 2501–AC63

Screening and Eviction for Drug Abuse

and Other Criminal Activity

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

SUMMARY: This final rule amends 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 1998

amendments to the statute authorizing

the public housing and Section 8

programs. These amendments give

Public Housing Agencies (PHAs) and

assisted housing owners the tools for

adopting and implementing fair,

effective, and comprehensive policies

for screening out programs 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: Effective Date: June 25, 2001.

FOR FURTHER INFORMATION CONTACT: For

tenant-based Section 8 and 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. Ms. Arnaudo also may be reached

via the Internet at

Patricia_S._Arnaudo@hud.gov.

For the Section 8 project-based

programs—Willie Spearmon, Director,

Office of Housing Assistance and Grants

Management, Office of Housing,

Department of Housing and Urban

Development, Room 4220, 451 Seventh

Street, SW., Washington, DC 20410;

telephone (202) 708–3000. Mr.

Spearmon also may be reached via the

Internet at Willie_Spearmon&hud.gov.

Only the Public and Indian Housing

Resource Center number is toll-free.

Persons with hearing or speech

impairments may access the above

telephone numbers via TTY by calling

the toll-free Federal Information Relay

Service at 1–800–877–8339.

SUPPLEMENTARY INFORMATION:

I. Background

HUD published a proposed rule to

implement the applicant screening and

tenant eviction procedures to make

HUD-assisted housing safer places to

live on July 23, 1999 (64 FR 40262),

which superseded earlier proposed

rules for the Section 8 and public

housing programs covering this subject.

Crime prevention in federally assisted

housing will be advanced by the

authority to screen out those who

engage in illegal drug use or other

criminal activity, and both prevention

and enforcement will be advanced by

the authority to evict and terminate

assistance for persons who participate

in criminal activity.

The changes proposed in that rule

derived from several sources. (See the

chart published in the July 23, 1999,

proposed rule at 64 FR 40264–40265 for

more detail.) Section 9 of the Housing

Opportunity Program Extension Act

(Pub. L. 104–120, 110 Stat. 834–846,

approved March 28, 1996)(‘‘the

Extension Act’’) amended sections 6 and

16 of the United Stated Housing Act of

1937 (42 U.S.C. 1437a, et seq.) (‘‘the

1937 Act’’). Sections 428, 506, 545, and

575–579 of the HUD Appropriation Act

for Fiscal Year 1999 (Pub. L. 105–276,

approved Oct. 21, 1998) amended

sections 3, 6, 8, and 16 of the 1937 Act

and created other statutory authority

concerning crime and security

provisions in most federally assisted

housing (42 U.S.C. 13661–13664). Title

V of the HUD Appropriation Act for

Fiscal Year 1999 (Pub. L. 105–276,

approved October 21, 1998) was

designated the Quality Housing and

Work Responsibility Act of 1998 and is

referenced in this rule as ‘‘the QHWRA’’

or ‘‘the 1998 Act.’’ Section 903 of the

Personal Responsibility and Work

Opportunity Act of 1996 (Pub. L. 104–

193, approved August 22, 1996, 110

Stat. 2105, 2348) amended sections 6(l)

and 8(d)(1) of the 1937 Act concerning

terminating tenancy for fleeing to avoid

prosecution, custody or confinement

after commission of a felony, or for

violation of probation or parole.

Although owners and PHAs have

been free to deny admission to

applicants for assisted housing on the

basis of criminal activity, these new

statutory provisions mandate denial of

admission for specified criminal

activity. In implementing the new

mandatory provisions, HUD does not

impair existing authority of owners and

PHAs to deny admission for criminal

activity other than that specified in this

rule or which has taken place at times

other than those specified. In addition,

although this rule provides a

mechanism for obtaining access to

criminal records, HUD recognizes that

many PHAs and owners may now use

other means of obtaining criminal

records and may continue to use these

other means of obtaining that

information. The portion of this rule

that addresses access to criminal

records, subpart J of part 5, does not

affect those other means. However, HUD

cautions PHAs and owners to handle

any information obtained about criminal

records in accordance with applicable

State and Federal privacy laws and with

the provisions of the consent forms

signed by applicants.

The preamble to the July 23, 1999,

proposed rule provided additional

information about the proposed

implementation of the Extension Act

and the 1998 Act.

II. Significant Differences Between This

Final Rule and the Proposed Rule

This final rule takes into

consideration the public comments

received on the proposed rule and

attempts to simplify the rule where

possible. The more significant changes

made to the July 23, 1999 proposed rule

by this final rule are described below.

1. Revised and reorganized regulatory

text. HUD has revised and reorganized

the majority of the proposed regulatory

text. These changes are not substantive,

but are designed to streamline the

contents of the proposed rule and make

the new requirements easier to

understand. For example, the final rule

uses a more reader-friendly question

and answer format. The more significant

of these clarifying and organizational

changes are described in greater detail

in this section.

2. Cross-reference to generally

applicable definitions (§ 5.100). The

final rule eliminates unnecessary

redundancy by relocating the

definitions of commonly used terms to

subpart A of 24 CFR part 5 (see § 5.100

of this final rule). The program

regulations using the defined terms have

been revised to simply cross-reference

to 24 CFR part 5, rather than repeating

the generally applicable definitions.

3. Authority to screen applicants and

evict tenants (24 CFR part 5, subpart I).

This final rule reorganizes and clarifies

the provisions of the proposed rule

concerning the authority of housing

providers to screen and evict tenants.

Some of the 1998 Act provisions require

certain actions, while other provisions

authorize various actions. In the

proposed rule, this distinction was not

always entirely clear. HUD has made

several revisions to proposed 24 CFR

part 5, subpart I to clarify these

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28777

differences. For example, the final rule

adds a new § 5.851, which discusses

these distinctions.

The final rule also locates the

specifically authorized actions in

separate sections from the mandatory

actions. This reorganization reveals the

statutory distinction between treatment

of illegal drug use and other drugrelated criminal activity. Current illegal

use of a drug is the subject of a

mandatory prohibition on admission.

Past eviction for drug-related criminal

activity and conviction for

methamphetamine production are also

the subject of statutory prohibitions on

admission. Certain other drug-related

criminal activity is required by statute

to be included in the lease as a basis for

eviction in the Section 8 and public

housing programs, and this policy has

been applied to other federally assisted

housing programs as well.

4. Prohibition on admission of sex

offenders (§ 5.856). Because the

prohibition against admitting persons

subject to a lifetime registration

requirement under a State sex offender

registration program is mandatory, but

not captured under the heading of the

other subjects of mandatory screening,

that provision is now contained in its

own section of part 5 (see new § 5.856).

Similarly, the sex offender provision is

positioned in the other program

regulations to emphasize the mandatory

nature of this provision as a screening

element.

5. Reorganization of 24 CFR part 5,

subpart J. Subpart J of the final rule is

reorganized slightly, to place all of the

applicability and purpose discussions in

one section (the new § 5.901), and all

the definitions in one section (the new

§ 5.902). The remaining two sections on

general criminal offender records and

sexual offender registration are

renumbered, as a result.

6. Opportunities to dispute criminal

record information (§ 5.903(f)). This

final rule adds a new § 5.903(f), which

requires the PHA to provide the subject

of an accessed criminal record and the

applicant or tenant a copy of the record

and an opportunity to dispute the

accuracy and relevance of the

information. This opportunity must be

provided before the denial of admission,

eviction, or lease enforcement action on

the basis of such information.

7. Penalties for improper release of

information (§ 5.903(h)). This final rule

adds a new § 5.903(h), which describes

the possible criminal penalties and civil

liability for unauthorized disclosure of

criminal records and information.

8. Lease and termination of tenancy

under the Section 8 Moderate

Rehabilitation Program (§ 882.511). This

final rule amends 24 CFR part 882

(entitled ‘‘Section 8 Moderate

Rehabilitation Program’’) to clarify drugrelated lease requirements under the

program regulations. Specifically, the

final rule adds a new § 882.511(a)(2),

which requires the lease to provide that

certain drug-related criminal activity is

grounds for termination of the tenancy.

In addition, the lease must provide that

the owner may terminate the tenancy

when the owner determines that a

pattern of illegal drug use interferes

with the health, safety, or right to

peaceful enjoyment of the premises by

other residents.

9. Removal of duplicative provision

(§ 882.514(g)). The final rule removes

one paragraph from the Section 8

Moderate Rehabilitation regulation

dealing with family obligations

(§ 882.514(g)), since its coverage of

denial of admission and termination of

tenancy is now covered in §§ 882.518(c)

and (d).

10. Admission and occupancy

changes (24 CFR part 960). On March

29, 2000 (65 FR 16692), HUD published

a final rule implementing the changes to

the admissions and occupancy

requirements for the public housing and

Section 8 assisted housing programs

made by the QHWRA. Among other

amendments, the Admissions and

Occupancy final rule made several

changes to 24 CFR part 960. The part

960 regulations had earlier been

proposed to be amended by the July 23,

1999 proposed rule on screening and

eviction for drug abuse and other

criminal activity. Accordingly, this final

rule updates or revises the proposed

revisions to part 960 to reflect

publication of the final rule on

admissions and occupancy.

11. Reference to PHAS screening and

eviction procedures (24 CFR parts 960

and 966). The final rule revises the

regulations governing public housing

admissions and occupancy (24 CFR part

960) and lease and grievance

requirements (24 CFR part 966) to

reference criminal screening and

eviction procedures under the Public

Housing Assessment System (PHAS).

Under the PHAS, PHAs that have

adopted policies, implemented

procedures and can document that they

successfully screen out and deny

admission to certain applicants with

unfavorable criminal histories receive

points (see 24 CFR 902.43(a)(5)).

12. Post office notification

requirements (§ 966.4(l)(5)). To correct

the proposed rule’s inadvertent removal

of a provision from the public housing

eviction provisions, the final rule

restores the current rule’s requirement

in § 966.4(l)(5) that a PHA notify the

local post office when the PHA evicts an

individual or family for criminal

activity. This provision implements a

statutory requirement (42 U.S.C.

1437d(n)) that is intended to prevent the

return to the development of the evicted

person to obtain mail.

13. Termination of tenancy under

Housing Choice Voucher program (24

CFR part 982). The rule for the Section

8 tenant-based certificate and voucher

programs on termination of tenancy for

drug-related criminal activity is based

on section 8(d)(1)(B)(iii) and section

8(o)(7)(D) of the 1937 Act (42 U.S.C.

1437f(d)(1)(B)(iii) and 1437f(o)(7)(D)), as

well as on section 577 of the 1998 Act.

The final rule changes the proposed

revision of § 982.310(c) to remove two

non-exclusive examples of when the

owner may terminate tenancy for drugrelated criminal activity.

14. Screening and Eviction by

Responsible Entity. Public commenters

had expressed concern that in all

programs the responsible entity be

encouraged to consider all the

circumstances of the family before

taking action based on proscribed

activity by one member of the

household. Public commenters had

objected to the provision of the

proposed rule that purported to

mandate a period of ineligibility for

prior eviction for drug-related criminal

activity that was longer than three years.

Public commenters had expressed the

view that the consideration of

rehabilitation was not prominent

enough in the rule. All of these

elements, plus specific requirements,

and adherence to the entity’s standards

and policies, are included in the

provisions regarding discretion. (This

provision is discussed at greater length

in response to the public comments.)

15. Clarification of eviction for drug

use by guests and other persons. Various

sections of the proposed rule allow

PHAs the option of evicting the tenant

when a ‘‘covered person’’ engages in

improper activity ‘‘on or off’’ the

premises (in the case of public housing)

and ‘‘on or near’’ the premises (in the

case of Section 8 programs). The

concept of ‘‘covered person’’ is an

umbrella term including (in addition to

the tenant) guests, members of the

tenant’s household, and ‘‘other persons

under the tenant’s control.’’ HUD has

defined ‘‘guest’’ in this context to mean

anyone staying in the unit with the

permission of the tenant or another

household member with the authority to

give such permission. In order to

distinguish the concept of ‘‘other

person’’ from ‘‘guest,’’ HUD is defining

‘‘other person under the tenant’s

control’’ to mean a short-term invitee

28778 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

who is not ‘‘staying’’ in the unit. The

rule specifies that such a person is only

under the tenant’s control during the

period of the invitation, and the person

is on the premises because of that

invitation. Hence, in §§ 5.858, 882.511,

882.518(c)(1), 966.4(f)(12), 966.4(l)(5),

and 982.310(c), the final rule replaces

the proposed term ‘‘covered person’’

with more specific language to clarify

this distinction.

16. More precise cross-references.

Sections 247.3, 880.607, and 884.216,

describing when landlords in the

assisted housing programs governed by

those sections may terminate tenancy

for criminal activity or alcohol abuse,

provide cross-references to part 5,

subparts I and J generally. The final rule

cross-references directly to the most

applicable sections of part 5 to avoid

any potential for confusion.

III. Responses to Public Comments

The public comment period on the

proposed rule closed on September 21,

1999. During this period, HUD received

29 public comments. The commenters

were comprised of 17 public housing

agencies (PHAs) and their

representatives, including four State

Housing Finance Agencies and their

representatives, three legal aid

organizations, three managers of Section

8 housing, four resident groups, one

Federal government agency, and one

legal organization representing PHAs.

The following discussion of comments

(and HUD’s responses to the comments)

is organized according to the regulatory

section to which the comment applies,

in sequential order. The corresponding

sections for particular programs are also

listed in the headings.

A. General Comments Not Regarding a

Particular Regulatory Section

Comment. Residents of an assisted

development that had been for elderly

persons only but had added other

residents recently expressed their

general support for the rule, hoping that

the rule will help rid their development

of problem tenants engaged in drugrelated activity. An owner of a Single

Room Occupancy project who

participates in HUD’s Shelter Plus Care

program praised the rule for giving the

owner the ability to reject and evict

tenants who engage in illegal activities

specifically related to drug and alcohol

use, noting that the rule will improve

the quality of life for its 195 residents.

This owner also praised the new

authority for a PHA to check criminal

records, as a way to restrict tenancy to

suitable applicants.

Response. With the new statutory

authority owners and PHAs should have

the tools to deny or terminate assistance

to families whose criminal actions

interfere with the safety and security of

the other residents.

Comment. A legal organization

representing PHA interests commended

the Department for an excellent overall

effort in its regulatory implementation

of the 1998 Act. The organization

commented that HUD had shown a

commendable reluctance to further

complicate an already complex statutory

scheme with regulations that are more

detailed than necessary.

Response. In that vein, HUD declines

to elaborate upon some of the statutory

terms that commenters have urged HUD

to define. In some cases, the terms may

already have been the subject of judicial

clarification. HUD is attempting to limit

its role to amplifying the statute only

where necessary.

B. Definitions—§ 5.100

Comment. HUD’s adoption of a

revised definition of ‘‘violent criminal

activity’’ was praised by a legal aid

organization, but the organization

recommended the ‘‘nontrivial bodily

injury or property damage’’ be changed

to ‘‘serious bodily injury or property

damage.’’ An organization providing

legal support to PHAs and their counsel

also expressed support of this revised

definition, particularly with respect to

its inclusion of threatening behaviors.

Response. HUD has adopted this

change. On further consideration of the

issue, HUD has decided that the word

‘‘serious’’ is a more common legal term

and therefore preferable. HUD intends

no change in meaning.

C. Prohibiting Admission of Drug

Criminals—§§ 5.854, 960.204, 982.553

Comment. Sections 5.854 and 960.204

(§§ 5.853, 960.203 at the proposed rule

stage), and 982.553(a) of the proposed

rule provide that the responsible entity

must adopt standards that prohibit

admission of applicants:

• If the entity determines that a

household member is engaged in or has

engaged in drug-related criminal

behavior; or

• If the entity determines it has

reasonable cause to believe that illegal

drug use by a household member may

threaten peaceful enjoyment by other

residents.

Comments asserted that most of the

provisions concerning whether a family

is eligible for admission or continued

occupancy use a phrase placing the

responsibility on the owner or PHA

determination of a condition, not on the

objective existence of the condition.

Representatives of housing owners and

residents asked what is meant by

reasonable cause for an owner to believe

that a condition exists (e.g., that there is

illegal use of a drug by a household

member that is a threat to others, as

described in § 5.854(a)(2)). They noted a

contrast with other provisions that seem

to be based on the existence of the

condition, such as whether a household

member ‘‘has been evicted from

federally assisted housing for drugrelated criminal activity.’’ (§ 5.853

proposed; § 5.854 final) They

recommended that the rule should

either (1) make the objective existence

of the condition rather than a PHA or

owner determination the critical factor

resulting in ineligibility or termination

of assistance; or (2) state the process and

standards to be used by the PHA or

owner in making its determination.

Response. Section 576 of the 1998 Act

refers to the PHA or owner’s

determination with respect to drug use,

criminal activity, or a pattern of activity

that would have potential negative

impact on other residents. In these

provisions, the Congress and the

Department recognize that the entities

that are responsible for direct

administration of the assisted housing

programs should have latitude for

practical and reasonable day-to-day

judgments whether household members

have committed criminal activity or

other activity that is grounds for denial

or termination of assistance. Thus, the

final rule simply reflects the statutory

language. HUD notes, however, that

nothing in the language of the rule on

the question of owner determinations

would change any ability to challenge in

court the responsible entity’s action or

change any applicable court standard of

review of such action.

Comment. A legal aid organization

criticized HUD’s implementation of

restrictions against persons who have

engaged in illegal drug use in § 5.854

(§ 5.853 of the proposed rule). The

commenter argued that, based on

section 576(b) of the 1998 Act, the rule

should permit such persons to be

excluded only if there is a link with a

threat to health, safety or peaceful

enjoyment of others.

Response. HUD disagrees that this

link must be present in every case

related to illegal drug use or drugrelated criminal activity. Section

576(b)(1)(A) of the 1998 Act provides

independent authority to bar admission

of persons currently engaged in illegal

drug use, without reference to any effect

on health, safety, or right to peaceful

enjoyment of the premises. Although

section 576(b) links a pattern of illegal

drug use to interference with the rights

of others, the language of section 576(c)

gives broad authority to owners to

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28779

screen out applicants involved in drugrelated activity—which includes illegal

drug use, as well as commercial drug

crime—without any necessary finding of

current interference with the rights of

others.

The language of section 576(c)

mentions the anticipated effect on

others in connection with an owner’s

choice to prohibit admission of persons

involved in forms of criminal activity

other than drug-related criminal activity

or violent criminal activity—to

designate serious forms of criminal

activity in addition to drug crime or

violent crime. While section 576(c)

confirms that an owner may deny

admission to criminal offenders, the law

also specifies that this new statutory

authority is ‘‘in addition to any other

authority to screen applicants. * * * ’’

Section 8 of the 1937 Act already

provided that ‘‘the selection of tenants

shall be the function of the owner.’’ (See

42 U.S.C. 1437f(d)(1)(A).) In public

housing also, there is nothing that

requires the PHA to admit certain

families or precludes the PHA from

screening for potential of disruptive

behavior. For many years, the public

housing regulations in part 960 have, in

fact, required the PHA to screen out

families likely to engage in such

behavior.

Following the structure of section 576

of the 1998 Act, § 5.854 implements the

mandatory screening provisions of

paragraphs (a) and (b) of the statute, and

§ 5.855 implements the permissive

screening provisions of paragraph (c) of

the statute. Section 576(c) permits

exclusion without a showing of current

interference with others.

Comment. Based on section 576(c) of

the 1998 Act, the rule should require

exclusion for past drug-related criminal

activity in § 5.854 (§ 5.853 of the

proposed rule) to be limited to activity

during a ‘‘reasonable time preceding the

date when the applicant household

would otherwise be selected for

admission’’ (or past criminal activity in

§ 5.854(a).)

Response. HUD agrees with the

commenter about when the reasonable

period should apply and has added this

language to § 5.855(a) (§ 5.854 of the

proposed rule), which deals with the

owner’s authority to prohibit admission

for violent criminal activity or other

criminal activity that threatens the

peaceful enjoyment of other residents.

In each case, HUD has made

corresponding changes in comparable

provisions of §§ 960.203 (concerning

standards for PHA tenant selection

criteria) and 982.553 (concerning

admission to the Section 8 voucher

program).

Comment. A legal aid organization

recommended that HUD specify what a

reasonable time period is, for

consistency nationwide. A distinction

should be made between an appropriate

period for drug-related or violent

criminal activity and other disqualifying

criminal activity, with ‘‘no more than

three years’’ applying to drug-related

and violent criminal activity, and a

shorter period for other criminal

activity. A PHA that expressed an

opinion on the subject recommended

that the time period be left to the

determination of the owner (or PHA).

Response. HUD believes it would be

too rigid for it to define a reasonable

time period in a manner that covers

every circumstance nationally. The

reasonable time period is still left up to

the owner (or PHA) to determine in its

admission policies. Owners and PHAs

may want to adopt standards that

differentiate what is a reasonable period

for different categories of criminal

activity. While HUD considers that five

years may be a reasonable period for

serious offenses, depending on the

offense, some PHAs or owners may not

agree. The owners and PHAs should

make these decisions in the best

interests of their communities.

Comment. Legal aid organizations and

a mental health organization objected to

the provision of proposed § 5.853(c)

(final § 5.854(a)) that permits an owner

to establish a reasonable period during

which a person previously evicted from

a federally assisted project for drugrelated criminal activity may be denied

admission to assisted housing. They

argued that the statute sets this period

at three years, giving the owner

authority to override the requirement to

deny admission if there is evidence of

rehabilitation. They pointed out that the

rule would permit exclusion of a person

on this basis for longer than three years

without any evidence that the applicant

would interfere with the health, safety,

or enjoyment of other tenants, in

violation of the statute.

Response. Section 576(a) of the 1998

Act provides that an applicant ‘‘shall

not be eligible’’ for admission to

federally assisted housing ‘‘during the

three-year period beginning on the date

of [eviction from such housing by

reason of drug-related criminal

activity].’’ However, the statutory

language does not in any way limit the

authority of the responsible entity to

screen out applicants in any other

circumstance—whether for criminal

activity or for any other reason. There is

nothing in the statute that requires an

owner or PHA to admit an applicant

who has previously been evicted from

federally assisted housing for drugrelated criminal activity at any point in

time.

Since the intent of the statute was to

strengthen protections against admitting

persons whose presence in assisted

housing might be deleterious, HUD does

not interpret this new provision as a

constraint on the screening authority

that owners and PHAs already had.

Therefore, the statute permits owners

and PHAs to establish a reasonable

period, which may vary depending on

the type of drug-related criminal activity

involved.

The final rule distinguishes the

mandatory ineligibility provision

applicable during a three-year period

from the owner’s authority to establish

a reasonable period longer than three

years to prohibit admission of such

applicants. The first, mandatory,

prohibition on admission is found in

§ 5.854(a). The second, discretionary,

extension of the period of the

prohibition is referenced in § 5.852(d)).

Comment. The exceptions permitting

eligibility for a previously evicted

applicant are stated in proposed

§ 5.853(a). The elaboration on the

statutory language ‘‘the circumstances

leading to the eviction no longer exist’’

provided in the rule are when ‘‘the

criminal household member has died or

is imprisoned.’’ One commenter urged

HUD to add a third example: When that

household member ‘‘is no longer in the

household.’’

Response. HUD declines to add this

example (§ 5.853 of the proposed rule is

§ 5.854 at the final rule stage).

Temporary absence from the household

is not a sufficient basis for granting an

exception. PHAs and owners can make

determinations of circumstances that

they are certain satisfy the statutory

language.

Comment. A PHA objected to

§ 5.853(b) of the proposed rule

concerning submission of evidence

related to drug-related criminal activity,

because the section appeared to require

the submission of evidence by every

applicant, regardless of the absence of

any allegations of drug-related criminal

activity by any household members at

any time. Other commenters expressed

concern about abuse of the authority to

seek such evidence unless the evidence

were sought from every applicant.

Response. Proposed 24 CFR 5.853(b)

was intended to implement the

provision of section 576(c) of the 1998

Act that provides the authority to

prohibit admission. The rule provides

that the owner may choose to consider

the application of an applicant to whom

the owner has previously denied

admission if the owner has sufficient

evidence that no member of the

28780 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

household is engaged in criminal

activity. In such a case, a family must

supply information or documentation

required by HUD or the responsible

entity to make an admission decision.

This provision, and the statute on which

it is based, do not preclude the owner

from asking for criminal background

information in connection with the

initial application. (See § 5.903(b) of this

final rule with respect to obtaining

consent from every applicant family for

release of criminal records.)

Comment. An organization

representing owners of assisted housing

in the State of Minnesota, wrote to point

out conflicts between the actions to

prohibit admission of persons who have

been engaged in drug use and State law

that prohibits discrimination on the

basis of past drug use. Does this rule

preempt State law with respect to this

protection?

Response. HUD declines to speculate

here about the applicability of this rule

to particular local situations. If there is

a concern about a specific potential

conflict between the HUD rule and a

State or local law, the applicable HUD

field office should be contacted.

Comment. One commenter criticized

the statement in the preamble of the

proposed rule that the 1998 Act

amendments to 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. In

essence, since rehabilitation of the

household member with the offending

substance abuse problem is the only

way to cure the household’s

ineligibility, the preamble to the

proposed rule stated that the whole

household is held responsible for that

member’s rehabilitation. The

commenter said that the statute did not

authorize such action.

Response. Both the denial of

admission and termination of assistance

provisions of the 1998 Act contain

provisions that give PHAs the discretion

to hold an entire household responsible

for the actions of members. Section

576(b) of the 1998 Act (42 U.S.C.

13661(b)) provides that a household

must be denied admission if the

household has ‘‘a member’’ with respect

to whom the PHA or owner determines

that it has reasonable cause to believe is

involved in illegal drug use or alcohol

abuse that is a threat to others. The

statute provides that rehabilitation of

the member can render the household

eligible for admission. Similarly, section

577 of the 1998 Act (42 U.S.C. 13662(a))

allows a PHA or owner to terminate the

tenancy or assistance for any household

with a member who is determined to be

illegally using drugs or whose illegal

drug use or alcohol abuse is determined

to be a threat to others.

Comment. A legal aid organization

stated that section 576(c)(2) of the 1998

Act (42 U.S.C. 13661(c)(2)) gave HUD

the responsibility for specifying ‘‘by

regulation’’ what would constitute

sufficient evidence to ensure that a

member of the family who had engaged

in criminal activity has not engaged in

such activity for a reasonable period. A

PHA recommended that the standard

should be the absence of an arrest for

drug-related crimes within a time

specified by the owner or PHA.

Response. HUD agrees that the rule

should include more guidance

concerning the evidence obtained after

the owner’s initial denial of admission

because of criminal activity by a

household member. The final rule

addresses this issue in § 5.855(c), which

states that an owner would have

‘‘sufficient evidence’’ if the individual

submitted a certification that she or he

is not currently engaged in and has not

engaged in such criminal activity during

the reasonable period, supported by

evidence from such sources as a

probation officer, a landlord, neighbors,

social service agency workers and

criminal records, which the owner

verified. The applicant will need to

supply information that will permit the

owner to contact these sources of

information, and the owner will need to

verify supporting evidence. Comparable

changes have been made to the sections

on both drug-related and other crimes in

parts 960 and 982.

D. Prohibiting Admission of Other

Criminals—§§ 855, 5.856, 960.204,

982.553

Comment. Two representatives of

owners point out that § 5.854 of the

proposed rule (§ 5.855 of the final rule)

merely permits owners to prohibit

admission of applicants who are

engaged in violent criminal activity,

while § 5.853 of the proposed rule

(§ 5.854 of the final rule) requires

owners to prohibit admission of

applicants they have ‘‘reasonable cause’’

to believe are currently involved in

drug-related criminal activity or alcohol

abuse. They recommended that HUD

require denial of admission in both

cases.

Response. The statutory language on

which these two sections are based

makes that distinction. Compare section

576(c) with section 576(b)(1)(B) (42

U.S.C. 13661(c) with 13661(b)(1)(B)).

Comment. An organization

representing owners suggested that the

rule may not permit denial of admission

because of theft or fraud, or any other

crime that does not fit the definitions of

threatening criminal activity.

Response. The rule does not overrule

an owner’s authority to screen tenants

for crimes or behavior not described in

the rule. Section 576 of the 1998 Act

recognized existing screening authority

of PHAs and owners with its lead in

phrase: ‘‘in addition to any other

authority to screen applicants, * * *.’’

[emphasis added] The final rule covers

this subject in a new § 5.851. In

addition, the final rule separates

mandatory actions from permissive

actions, both of which reside in the

context of existing authority.

Comment. The requirement of

§ 5.854(c) of the proposed rule to check

whether any member of a household is

the subject of a lifetime registration

requirement under a State sex offender

registration program constitutes a

significant burden. The search should

be limited to consultation with

appropriate officials of the state in

which the PHA (or owner) is located

and to any state in which the applicant

is known to have resided.

Response. HUD agrees that the search

can be limited to these states. The final

rule reflects this policy—in the new

§ 5.856 and in § 5.905(a).

E. Prohibiting Admission of Alcohol

Abusers—§§ 5.857, 960.204, 982.553

Comment. A legal aid organization

argued that alcohol abusers must be

found to be a threat to others, and that

the rule should focus on behavior rather

than status. The organization

commented that this provision should

cross-reference the applicability of

consideration of rehabilitation.

Response. Section 5.857 of the final

rule includes the link between

admissions standards and the alcohol

abuser’s impact on others, as the

proposed rule did. The rule concerning

consideration of rehabilitation is found

in another paragraph of the same section

in the case of public housing (proposed

§ 960.203; final § 960.205) and the

voucher program (§ 982.553), and in a

nearby section in the case of other

project-based programs (proposed

§ 5.855; final § 5.862), so no crossreference is necessary.

F. Termination of Assistance for DrugRelated Criminal Activity—§§ 5.858,

966.4(f)(12)(i) & (l)(5)(i), and 982.310(c)

Comment. A legal aid organization

criticized regulatory language that

would allow a project owner to

terminate an assisted tenancy because a

tenant ‘‘has engaged in’’ drug-related

criminal activity. The comment stated

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28781

that section 577(a) of the 1998 Act only

supports eviction for past drug-related

criminal activity when there is a pattern

of illegal drug use that interferes with

the ‘‘health, safety, and peaceful

enjoyment’’ of others. The commenter

recommended that the rule follow the

statute more closely and that the rule

add a reference to consideration of

rehabilitation.

Response. Section 577 of the 1998 Act

requires the owner to use lease

provisions that allow the owner to

terminate tenancy if a household

member ‘‘is illegally using’’ a controlled

substance, or if the owner determines

that drug use or abuse interferes with

peaceful enjoyment by other residents.

However, section 577 of the 1998 Act

does not supplant or supersede statutory

and regulatory authority that authorize

the owner to terminate tenancy for drugrelated criminal activity (e.g., for

present or past drug dealing during the

term of the tenancy), or that require the

owner to use a lease that allows the

owner to terminate the tenancy for such

drug crime. The 1998 Act was enacted

to promote ‘‘safety and security in

public and assisted housing’’ by

supplementing and strengthening

existing statutory tools for fighting

criminal activity by assisting housing

residents (see subtitle F of the 1998 Act,

which includes section 577).

For Section 8 programs, section 8(d)

mandates that program leases ‘‘shall

provide’’ that ‘‘any drug-related

criminal activity’’ on or near the

premises by a covered person during the

term of the lease is grounds for

termination of tenancy (42 U.S.C.

1437f(d)(1)(B)(iii)). The additional

‘‘safety and security’’ requirements

enacted in the 1998 law must be

implemented in tandem with the

existing termination requirements in

section 8 of the 1937 Act, so that owners

have authority to evict drug dealers as

well as drug users, and the authority to

evict for past drug-related criminal

activity during the term of tenancy, as

well as for continuing or recent drugrelated criminal activity. Existing HUD

program regulations for the various

assisted housing programs already

provide authority for an assisted project

owner to terminate tenancy for drugrelated and other forms of criminal

activity (see 24 CFR part 247, 24 CFR

880.607). Such provisions are included

in the HUD model lease for Section 8,

Section 236, and Section 221(d)(3)

below-market interest rate projects. The

new termination of tenancy

requirements under this rule (§§ 5.856

and 5.857 of the proposed rule; §§ 5.858

through 5.861 of the final rule) are

consistent with termination of tenancy

requirements in the existing program

regulations.

For public housing, the 1937 Act

(section 6(l)(6)), 42 U.S.C. 1437d(l)(6))

requires that a PHA use leases that

‘‘provide that any criminal activity that

threatens the health, safety, or right to

peaceful enjoyment of the premises by

other tenants or any drug-related

criminal activity on or off such

premises, engaged in by a [covered

person] shall be cause for termination of

tenancy.’’ Thus, the illegal drug use

criterion of section 577 of the 1998 Act

adds little regarding eviction of illegal

drug users for the public housing

program, but adds a provision on

alcohol abuse. None of the statutes

explicitly addresses the timing of the

offending activity. The final rule does

not include the phrase ‘‘during the term

of the lease’’ that would have been

added by the proposed rule, since that

phrase is unnecessary. Activity

occurring only prior to the time the

leaseholder signed the lease, or the

household member or guest joined the

household or became a guest, would not

be a basis for termination of tenancy.

The provision on consideration of

rehabilitation is not included in the

eviction provision itself but is included

in the regulatory provisions that address

generally the authority of a responsible

entity in making admission and

termination decisions (see §§ 5.852,

960.203, 966.4, 982.310, and 982.552).

Comment. A PHA challenged the use

of term ‘‘on or near such premises’’ with

respect to the location of the drugrelated criminal activity that is grounds

for eviction (in proposed § 5.856)

(eviction from assisted projects) and

§§ 982.310(c)(1)(i) and (c)(2)(i)(C))

(eviction from housing of families

assisted Section 8 tenant-based

programs). A PHA noted that the phrase

was changed to ‘‘on or off such

premises’’ by a 1996 statute.

Response. Sections 6(k) and 6(l)(6) of

the 1937 Act now use the term ‘‘on or

off such premises’’ with respect to drugrelated or violent criminal activity in

stating conditions for which leases must

require termination of tenancy, and in

distinguishing which types of

termination of tenancy can be the

subject of an expedited grievance

procedure, respectively, in the public

housing program. However, sections

8(d)(1)(B)(iii) and 8(o)(7)(D)of the 1937

Act, concerning leases used in the

Section 8 programs, still use the term

‘‘on or near such premises’’ with respect

to drug-related criminal activity that is

cause for termination of tenancy.

Section 576(c) of the 1998 Act,

referenced in section 6(l)(7) of the 1937

Act, provides for denial of admission on

the basis of drug-related or violent

criminal activity, without mention of its

location.

In the final rule, the provisions

applicable only to public housing (part

966) use the term ‘‘on or off.’’

References to ‘‘on or near’’ are found in

all the provisions concerning

termination of tenancy applicable to

Federal Housing Administration

subsidized housing and assisted

housing for the elderly, as well as to the

Section 8 program (part 5, subpart I, and

part 982).

Comment. One commenter pointed

out that § 966.51(a)(2)(i)(B), which

implements the expedited public

housing grievance procedure provision

of the statute, should reflect the

statutory change authorizing eviction for

drug-related criminal activity ‘‘on or

off’’ public housing premises.

Response. HUD has made this change.

Comment. Two representatives of

public housing tenants objected to the

provision of § 966.4(f)(12)(i) that permits

eviction from public housing based on

criminal activity off the premises by a

guest of the household unrelated in time

to the visit to the premises and

unrelated to its effect on residents of the

premises or the vicinity. One of them

stated that the Section 8 rule is more

reasonable in that the Section 8 rule

only permits such eviction if the guest’s

criminal activity took place on or near

the premises. This commenter suggested

that the provision requires a

demonstration that the resident had

control over the guest’s actions and that

the actions constituted a serious

violation of the resident’s lease. Another

commenter suggested that the criminal

activity serving as the basis for

termination be required to take place on

the premises.

Response. HUD is not persuaded by

these arguments to change the ‘‘on or off

the premises’’ language of rule, because

the ‘‘on or off the premises’’ language in

the statute pertaining to public housing,

42 U.S.C. 1437d(l)(6), potentially

applies to guests and ‘‘other persons

under the tenant’s control,’’ and is not

qualified by whether the resident knew

about or literally ‘‘controlled’’ the

guest’s unlawful actions. Rather, the

question is one of legal control; by

‘‘control,’’ the statute means control in

the sense that the tenant has permitted

access to the premises. See HUD’s 1991

rule on public housing lease and

grievance procedures, 56 FR 51560,

51562 (‘‘the question * * * is whether

the person in question was in the

premises with the consent of a

household member at the time of the

criminal activity * * *.’’) See also, for

example, Housing Authority of New

28782 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

Orleans v. Green, 657 So.2d 552, 553

(La.Ct.App.), writ denied, 661 So.2d

1355 (La.1995), cert. denied, 517 U.S.

1169, 116 S.Ct. 1571, 134 L.Ed.2d 670

(1996). HUD has revised the definition

of ‘‘guest’’ and added a definition of

‘‘other person under the tenant’s

control’’ to the general definitions

section of 24 CFR part 5. HUD has also

revised 24 CFR 966.4(f)(12) and

966.4(l)(5)(i)(B) to clarify how the

concept of ‘‘control’’ relates to tenant

liability for the behavior of guests and

others.

In order to provide guidance as to the

scope of the tenant’s legal control and

hence potential responsibility, the rule

has been revised to provide that a

‘‘guest’’ is a person temporarily staying

in the unit with the consent either of the

tenant or of a household member with

express or implied authority to consent

on behalf of the tenant. The definition

of ‘‘guest’’ also has been revised to

clarify that the activity of a guest is

actionable under this provision only if

the activity takes place while the person

is a guest; only in that case can the

tenant’s legal control extend to actions

that occur off public housing premises.

In contrast, if a person (with the

tenant’s consent) visits public housing

premises for only a short period of time

and is not ‘‘staying’’ in the tenant’s unit,

the tenant’s legal control necessarily

would be limited by the brevity of the

visit and would not extend to activity

off public housing premises. Because

the rule’s definition of ‘‘guest’’ now

includes only persons ‘‘staying’’ in the

unit with consent, the rule uses the

phrase ‘‘other person under the tenant’s

control’’ to denote this latter category of

non-guest invitee, over whom the

tenant’s legal control necessarily applies

only during the period of invitation onto

public housing premises. HUD has

made similar changes in the relevant

sections dealing with Section 8

assistance to make those provisions

consistent with public housing.

HUD has also clarified that a

commercial visitor such as a delivery

person only visiting the premises for the

purpose of making a delivery and

having no other contact with the unit or

relationship with the tenant ordinarily

would not be a person under the

tenant’s control, and hence the tenant

would not be liable for any improper

activity by the delivery person. HUD has

added to the definition of ‘‘other person

under the tenant’s control’’ a sentence

clarifying the exclusion from the

definition of persons on the premises for

brief, infrequent visits for legitimate

commercial purposes. Of course, if it

could be shown that if such a

commercial visitor were engaging in

prohibited activity and the tenant knew

about it or was somehow involved in it,

there would be no such exclusion.

Some courts have disagreed with

HUD’s concept of legal control and have

read into 42 U.S.C. 1437d(6)(l) a

requirement that the tenant have some

degree of knowledge or ability to control

the unlawful behavior. See, for example,

Rucker v. Davis, 237 F.3d 1113 (9th Cir.,

2001) (en banc).

If individual PHAs are subject to

binding court decisions, of course they

should follow them even though HUD’s

interpretation may differ. Quite apart

from these decisions, PHAs may

conclude in particular instances that no

useful purpose would be served by

terminating a tenancy on the basis of a

crime committed by a guest or other

person with whom the leaseholder only

had a minimal connection. The fact that

statutorily required lease provisions

would allow PHAs to terminate tenancy

under certain circumstances does not

mean that PHAs are required to do so

in each case where the lease would

allow it.

Comment. A PHA requested that in

the Section 8 tenant-based assistance

program HUD not restrict an owner’s

right to terminate tenancy for violent

criminal activity that occurs only ‘‘on or

near the premises.’’ The owner should

not have to wait until the criminal

activity comes ‘‘home’’ before removing

such a tenant.

Response. Section 8 authorizes

eviction for violent criminal activity ‘‘on

or near the premises,’’ or alternatively

for any criminal activity that threatens

other residents of the development or

the peaceful enjoyment of their homes

of residents in the vicinity (42 U.S.C.

1437f(d)(1)(B)(iii) and 1437f(o)(7)(D)).

The final rule reflects these distinctions.

(See § 982.310.)

G. Evicting Other Criminals—§§ 5.859,

966.4(l)(5), 982.310(c)(2), and

982.553(b)(2)

Comment. A legal services

organization recommended restoring

language of § 966.4(l)(5), preserving for

PHAs (and adding for courts)

‘‘discretion to consider all of the

circumstances of the case, including the

seriousness of the offense, the extent of

participation by family members, and

the effects that the eviction would have

on family members not involved in the

proscribed activity.’’ The commenter

cited support for this position in a

Congressional committee report on the

1990 amendment to the statutory

foundation for this provision. That

report suggested that eviction would be

inappropriate if the tenant had no

knowledge of the criminal activities of

guests or had taken reasonable steps to

prevent the activity. (S. Rep. No. 316,

101st Congress, 2d Sess. 179, reprinted

in 1990 U.S. Code Cong. & Admin.

News 5763, 5941.) The commenter

urged changes to the rules for Section 8

project-based and tenant-based

assistance, as well, to encourage courts

to consider all circumstances and

exercise discretion in a humane manner

when evicting a tenant for another

person’s criminal activity.

Response. As discussed in more detail

elsewhere in the preamble, the final rule

allows the necessary flexibility for PHAs

with respect to public housing and

owners with respect to project-based

assistance and tenant-based assistance.

This is consistent with the cited

committee report language, which in

any event has not been reflected in any

statute. The committee report language

for both the House and Senate versions

of the QHWRA emphasizes efforts to

make assisted housing safer for

residents, which is consistent with the

final rule.

The statute does not authorize courts

to exercise this same type of discretion.

Courts determine whether a violation of

the lease has occurred and whether the

lease provides that such a violation is

grounds for eviction of the persons

whom the PHA seeks to evict. In the

latter regard, HUD recognizes that some

courts, such as the Ninth Circuit in

Rucker v. Davis, prompted by their

differing view of Congressional intent,

have read into the lease provision

mandated by Section 6(l)(6) a

requirement that a PHA, in certain

circumstances, demonstrate

particularized fault or other lack of

‘‘innocence’’ on the part of a leaseholder

when a PHA seeks to terminate a lease

based on a crime committed by someone

other than the leaseholder. Obviously,

PHAs must abide by any such binding

court decisions in their jurisdictions,

even though HUD has a differing view.

However, it is important to recognize

that even in those jurisdictions, a court’s

function under HUD’s regulations is to

determine whether an eviction meets

the requirements of the lease and of

Section 6(l)(6) as they have been

interpreted in that jurisdiction, and not

whether a PHA has considered

additional social and situational factors

that HUD’s regulations authorize, but do

not require, a PHA to consider in

making its decision whether or not to

pursue eviction of any family or

individual whom, under the lease, the

PHA has the legal right to evict (see, for

example, § 966.4(f)(5)(vii)(B).) See

Minneapolis Public Housing Authority

v. Lor, 591 N.W.2d 700 (Minn. 1999).

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28783

Comment. Another commenter took a

different view of such discretion

conferred on PHAs with respect to

termination of tenancy. A legal

organization representing PHA interests,

stated that when PHAs are given

discretion to do something they are not

required to do it. Certainly, courts

should not exercise the discretion for

them. To avoid this possibility, this

commenter recommended adding

language to the effect that (a) the

existence of discretion on the part of

PHAs does not obligate them to exercise

the discretion in any particular case;

and (b) the discretion in the regulation

is not intended to confer the discretion

to consider circumstances other than

proof of lease violation on any court or

party other than the PHA. The

commenter argued that such a position

is consistent with the policy of giving

PHAs the maximum flexibility possible

in the operation of assisted housing,

ensuring safe and livable environments.

Response. HUD agrees that conferring

discretion on PHAs to take action does

not require them to take action, and that

HUD’s conferral of discretion on PHAs

in deciding whether to terminate

tenancy in each case does not constitute

a conferral of discretion on local courts

to consider factors other than those

appropriate under the lease. Of course,

by the same logic, it should also be

noted that, insofar as PHAs possess

discretion to determine for themselves

when to initiate eviction proceedings,

they are neither required by law nor

encouraged by HUD to terminate

leaseholds in every circumstance in

which the lease would give the PHA

grounds to do so. However, the rule

does not need to add the language

suggested by the commenter as these

points are already inherent in the

regulatory language.

Comment. One PHA recommended

that, in the Housing Choice Voucher

Program, the rule authorizing an owner

to terminate the tenancy of any tenant

who engages in violent criminal activity

on or near the premises (§ 982.310(c)(2))

should be revised to cover commission

of a felony or serious misdemeanor,

regardless of where it was committed.

This PHA also recommended a change

in the provision that prohibits

participants from engaging in drugrelated or violent criminal activity, or

other criminal activity or alcohol abuse

that threatens the health, safety, or

peaceful enjoyment of the premises

(§ 982.551(l) and (m). The commenter

urged HUD to revise this provision so

that the criminal activity that is

actionable does not require force and

does not have to be committed in the

vicinity of the development. Provisions

authorizing PHAs to terminate

assistance to participants (§§ 982.552

and 982.553) should also be revised,

according to this commenter, to permit

termination of assistance of participants

who commit a felony or misdemeanor,

regardless of where it is committed.

This recommendation is based on the

need for public support for assisted

housing programs.

Response. In the voucher program, an

owner’s termination of tenancy must be

based on a serious or repeated violation

of the lease, violation of law that

imposes obligations on the tenant in

connection with occupancy, or other

good cause (§ 982.310). The existing rule

describes certain types of criminal

activity that violate federal law with

respect to the obligations of tenants.

This rule amends the existing

regulations to reflect the requirements of

the statutes it is implementing with

respect to criminal activity and tenant

obligations as they relate to an owner’s

right to terminate tenancy. This rule

also reflects these provisions with

respect to a PHA’s rights and obligations

to terminate assistance with respect to

criminal activity.

The statutes being implemented in

this rulemaking specifically require

owners to adopt leases that authorize

eviction for illegal drug use (or for a

pattern of illegal drug use that would

interfere with other residents’ rights)

without regard to location, but they do

not broaden the type of criminal activity

or remove the proximity condition with

respect to other drug-related or violent

criminal activity as the commenter

urges HUD to do in the rule.

Nonetheless, the rule permits an owner

to specify in the lease grounds for

eviction other than those specifically

mandated by these statutes to be

included in the lease or to evict for

‘‘other good cause.’’ An owner who used

a standard lease that provided that

commission of any felony or serious

misdemeanor by a household member is

grounds for termination would have

grounds to evict a tenant for serious

lease violation for such criminal

behavior, in accordance with § 982.310,

if that lease provision were consistent

with State and local law and were

applied equally to voucher holders and

other tenants. (See section 8(o)(7)(B) (42

U.S.C. 1437f(o)(7)(B).) ‘‘Other good

cause’’ is subject to interpretation by

local courts, but may well encompass

some categories of activity and location

that the commenter seeks to cover.

Comment. One commenter stated that

there is statutory authority for

termination of tenancy for criminal

activity other than drug-related criminal

activity if the criminal activity is a

threat to others in the Section 8 existing

housing program. While that authority

is reflected in § 5.857 of the proposed

rule, applicable to termination of

tenancy in the project-based assistance

program, there is no comparable

provision pertaining to tenant-based

assistance.

Response. Section 982.310(c)(2) of the

proposed rule reflects this authority.

Since the statute speaks in terms of

termination of tenancy, not termination

of assistance, the language is not

repeated in the section on termination

of assistance in the tenant-based

assistance program, § 982.553.

Comment. One PHA expressed

disappointment that the public housing

rule provision on termination of tenancy

does not go farther, to terminate for

violent criminal activity on or off the

premises and for criminal or other

activity by a covered person that

threatens other residents, PHA

employees, or residents in the

immediate vicinity. The PHA stated that

the provisions of the ‘‘Public Housing

Management Reform Act of 1997’’

require that these form the basis for

termination of tenancy in the public

housing program.

Response. The referenced proposed

legislation was not enacted. This final

rule implements the legislation that was

enacted. The 1937 Act already provided

for termination if a member of the

household, guest or other person under

the tenant’s control engaged in criminal

activity that threatens residents or in

any drug-related criminal activity on or

off the premises.

Paragraphs (1)(2)(iii) and (1)(5) of

§ 966.4 of the proposed rule addressed

the issue of what activity forms the basis

for termination of tenancy—the first in

terms of what constitutes ‘‘other good

cause’’, and the other in terms of

criminal activity or alcohol abuse that is

actionable, based on the recent statutory

revisions. Notable differences between

the two provisions are that:

(1) Paragraph (1)(2) used the term

‘‘member of the household’’, whereas

paragraph (1)(5) used the broader term

‘‘covered person,’’ which is defined in

§ 966.2;

(2) Paragraph (1)(2) addressed other

criminal activity if the activity is a

threat to others, whereas paragraph

(1)(5) addressed only criminal activity;

and

(3) Paragraph (1)(2) was silent about

where the activity takes place, whereas

paragraph (1)(5) specified that drugrelated criminal activity is actionable

regardless of whether it is committed on

or off the premises.

The final rule consolidates these

provisions in paragraph (1)(5). The

28784 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

consolidated provision deals only with

criminal activity. The final rule retains

the reference to ‘‘covered person,’’ with

the difference that, in the case of drugrelated criminal activity, in order to

clarify the reasonable extent of the

tenant’s legal ‘‘control,’’ the rule, as

discussed above, differentiates between

‘‘other person under the tenant’s

control’’ and tenants themselves, guests

and other household members. The final

rule maintains the provision that

specifies the location of criminal

activity only with respect to drugrelated criminal activity, consistent with

the statute for public housing.

(Authority for Section 8 project-based

assistance is similar to that for public

housing on this issue, while the

authority for tenant-based assistance

(section 8(o)(7)(D)) puts violent criminal

activity in the same category as drugrelated for purposes of the location

where it takes place—‘‘on or near the

premises’’.) It is clear, however, that if

violent criminal activity threatens the

residents of the housing, that activity

would be actionable under the rule,

even without the location being

specified.

Comment. Section 5.857(a) of the

proposed rule requires that criminal

activity that threatens the health, safety,

or peaceful enjoyment of their

residences by persons residing in the

‘‘immediate vicinity of the premises’’ is

cause for termination of tenancy (based

on the authority of sections

8(d)(1)(B)(iii) and 8(o)(7)(D)). For the

public housing program, the proposed

rule seemed to cover action that is a

threat to persons residing in the

‘‘immediate vicinity’’ in § 966.4(l)(2) but

did not in § 966.4(l)(5). That difference

was resolved in favor of covering such

impact. Two representatives of owners

asked for guidance on the meaning of

the phrase ‘‘immediate vicinity of the

premises.’’ Litigation impeded their

implementation of ‘‘on or near the

premises’’ language formerly found in

the 1937 Act. A PHA asked whether

‘‘near the premises’’ in proposed § 5.856

and ‘‘in the immediate vicinity of the

premises’’ in proposed § 5.857 had

different meanings, and whether either

of them meant farther away than the

‘‘1000 feet’’ away that their current

leases provide. A tenant organization

also asks for clarification of what

specific distance is meant.

Response. The terms used in

proposed §§ 5.856 and 5.857 (final

§§ 5.858 and 5.859) are both derived

directly from the statute. The courts will

interpret these terms as part of

endorsing or repudiating actions taken

by PHAs under their standards.

Comment. Proposed §§ 5.857(b) and

982.553(b)(2)(ii) (see also,

§§ 966.4(l)(5)(ii)(B)) require that the

lease must provide that the owner may

terminate the tenancy if a member of the

household is fleeing prosecution or

confinement for a felony or is violating

parole. A PHA pointed out that although

the rule requires the lease to contain

this provision, the rule states that PHAs

and owners ‘‘may’’ terminate tenancy on

this basis. The PHA objects to requiring

this as a lease provision if the PHA or

owner has no intention of enforcing it.

An owner representative points out that

a court is unlikely to enforce such a

provision by evicting an entire family

because one person fits one of these

categories. The commenter states that it

is more likely that the court would

simply evict the offender if the other

household members have not caused a

disturbance and are current in the rent.

Response. The rule provisions follow

the statutory requirements. This final

rule does make one adjustment: where

the proposed rule applied the fugitive

felon provision to ‘‘a member of the

household,’’ in fact, Section 6(l)(9) of

the 1937 Act, as added by section 903

of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996,

Pub. L. 104–193, 110 Stat 2105, requires

PHAs to use leases that provide that the

fact that a ‘‘tenant’’ is fleeing to avoid

prosecution, custody or confinement for

a felony, or is violating a condition of

probation or parole, is a basis for

termination of tenancy. Similarly,

section 8(d)(1)(B)(v) of the 1937 Act

requires HAP contracts between PHAs

and Section 8 owners to require the

owners to use leases that include the

fugitive felon provisions in respect to

‘‘tenants’’ as a basis for termination of

tenancy. Section 8(o)(7) of that Act

requires the HAP contract between a

PHA and owner participating in the

Section 8 voucher program to contain

terms generally applicable to the

owner’s other tenants and include any

addenda required by the Secretary. This

provision is included in an addendum

required by the Secretary for the

voucher program. Hence, the final rule

applies the fugitive felon provisions to

‘‘tenants.’’ Of course, a PHA can include

additional lease provisions that do not

violate 42 U.S.C. 1437d(l)(2) or any

express statutory provision. Hence,

PHAs may include, so long as they do

not violate any applicable laws,

reasonable lease provisions that could,

for example, require the tenants to

exclude fugitive felons or parole

violators from the household, and make

failure to do so a basis for breach of the

lease. Of course, PHAs may also

consider other circumstances per

section 982.552(c)(2).

While some PHAs and owners may

choose not to take action against tenants

who are fleeing felons or parole

violators, the statute requires that PHAs

and owners use leases that afford that

option. The statutes and these

implementing regulations also leave to

PHAs and owners sufficient discretion

to use their authority in a way that

serves the best interests of the

development and the community.

It should be noted that proposed

§§ 5.857(b) is § 5.859(b) in this final

rule. Also, the Section 8 fugitive felon

provision, proposed 982.553(b)(2)(ii), is

located at § 982.310(c)(2)(ii) of the final

rule.

H. Evidence of Criminal Activity—

§§ 5.861, 966.4(l)(5), and 982.553(c)

Comment. A legal aid organization

and a mental health organization

challenged this section because the

section does not specifically reference a

threat posed by the criminal activity to

other residents. (Other similar sections

cited by the commenter were

§§ 882.518(b)(3), 960.203(d),

966.4(l)(5)(iii), and 982.553(c).)

Response. The intent of proposed

§ 5.858 was not to provide an

independent basis for denial of

admission or termination of tenancy but

to add a provision applicable to all the

other sections. HUD has clarified that by

adding to that section (§ 5.861 of the

final rule) after the words ‘‘by a family

member’’ the phrase ‘‘in accordance

with the provisions of this subpart,’’ and

comparable language to § 966.4(l)(5). In

fact, §§ 882.518(b)(3), 960.203(d), and

982.553(c) already contain such

references.

Comment. Several commenters noted

that § 982.553(c) uses the term

‘‘household member’’ as opposed to

‘‘covered person’’; stated that the same

problem is found in § 982.310(c)(1)(B)

and (c)(3); and questioned where there

is any significance to that difference in

terminology.

Response. The statutory restrictions

on admission pertain to members of the

household, while most (but not all)

provisions relating to termination of

tenancy refer to actions by the broader

category of ‘‘covered person’’ (which

includes tenants, guests, and ‘‘other

persons under the tenant’s control’’).

(As examples of eviction provisions that

apply to categories more narrow than

‘‘covered person,’’ see § 577 of QHWRA,

42 U.S.C. 13662 (household members)

and 42 U.S.C. 1437d(l)(9) (tenants).) The

sections in the final rule that apply only

to termination of tenancy use the term

‘‘covered person,’’ except that, in some

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28785

cases where the proposed rule referred

to ‘‘covered person,’’ the final rule

differentiates between tenants,

household members and guests and

‘‘other persons’’ in order to clarify

potential tenant responsibility for the

off-premises actions of others.

Comment. A problem was stated by

representatives of owners, PHAs, and

tenants: what type of evidence and what

standard of evidence should be used to

determine that a person has engaged in

criminal activity. The proposed rule just

stated that the owner or PHA need not

rely on an arrest or conviction. Some

commenters observed that, in the

absence of a conviction, courts have

been skeptical of owners seeking to

evict a tenant for criminal activity, and

owners are generally not prepared to

provide their own witnesses to prove

such an offense. Proposed solutions

included (1) stating only that a

conviction is unnecessary; (2) restoring

the language of the current § 982.553(c),

which authorizes a PHA to terminate

assistance when a preponderance of the

evidence indicates that a family member

has engaged in drug-related or violent

criminal activity; and (3) stating who

bears the burden of proof and the

procedures to be followed. The legal aid

organization recommending the second

solution said that it interprets this

language to mean that the allegation is

more likely so than not so. The

organization recommends this standard

to avoid arbitrary determinations by

owners or PHAs.

Response. In the final rule, HUD has

adopted the first recommended

approach with respect to most

programs. Section 5.861 specifies that

with respect to eviction for criminal

activity, neither an arrest nor a

conviction is necessary, and the

responsible entity need not satisfy the

standard of proof used for a criminal

conviction. This provision is replicated

elsewhere for public housing

(§§ 960.203(d) and 966.4(l)(5)(iii)). For

termination of assistance, however, in

the Section 8 tenant-based and moderate

rehabilitation programs, the final rule

retains the reference to preponderance

of evidence, since there is no

expectation of a court proceeding with

respect to this termination of a benefit,

and HUD wants to assure that the action

is not taken lightly. (See §§ 882.518(d),

982.310(c), and 982.553(c).)

I. Terminating Assistance to Alcohol

Abusers—§§ 5.860, 966.4(l)(5),

982.310(c), and 982.553(b)

Comment. A legal services

organization criticized these sections for

appearing to require abstinence from

alcohol to be considered rehabilitated

from alcohol abuse that would threaten

others. The language of § 982.553(e) of

the proposed rule, for example, refers to

a ‘‘household member who is no longer

engaging in such abuse’’ and successful

completion of ‘‘a supervised drug or

alcohol rehabilitation program.’’

Response. These provisions (the

language of § 982.553(e) is found in

§ 982.552(c)(2)(iii) of the final rule)

relate only to cessation of alcohol

‘‘abuse’’ sufficient to constitute a threat,

and to the PHA’s option to consider the

successful completion of a treatment

program. The commenter reads content

into the rule that is not there. Therefore,

HUD declines to change the rule in

response to this comment.

Comment. An owner’s representative

noted that, although the owner’s lease

must provide for termination of tenancy

for alcohol abuse that threatens the

health or safety of other residents, the

action to terminate such a tenancy is a

voluntary one by the owner. This

decreases the potential conflict between

human rights protection for alcohol

abusers and this rule.

Response. HUD agrees with this

comment. No change in the language of

the rule is needed.

J. Drug Use and Alcohol Abuse:

Consideration of Circumstances—

§§ 5.852, 966.4(l)(5), 982.553(e)

Comment. A resident organization

objected to the fact that an owner is not

required to consider whether the

household member involved has

completed or is participating in a

rehabilitation program. Another

organization recommended that the rule

make more explicit that a PHA is not

required to consider rehabilitation.

Response. The statute clearly states

that the PHA or owner may consider

whether the person is rehabilitated. The

rule reflects this statutory language in

§ 5.852 of the final rule.

Comment. A legal services

organization criticized the organization

of the treatment of rehabilitation as a

consideration in admission and

termination decisions. This commenter

recommended creating a stand-alone

section on rehabilitation that is then

cross-referenced in all of the admission

and termination-related sections.

Response. In subpart I of part 5,

proposed § 5.860 addressed the issue of

rehabilitation, and the final rule

continues to address this matter in

§ 5.852. Each of the specific program

regulations contains a comparable

provision. Of course, where

rehabilitation is an element that would

render an applicant not ineligible under

the law—with respect to a tenant

previously evicted for drug-related

criminal activity—the applicable rule

provision mentions this element.

Additional language to cross-reference

these rehabilitation provisions is

unnecessary.

Comment. Proposed § 5.860(a)

includes three ways of demonstrating

rehabilitation: (1) current participation

in a supervised program; (2) successful

completion of a supervised program; or

(3) otherwise having been rehabilitated

successfully. A legal aid organization

and a mental health organization

pointed out in paragraph (b) of this

section does not include the third prong

in the discussion of the types of

evidence that may be submitted by a

household member and argues that such

persons (who may have succeeded with

Alcoholics Anonymous) should not be

excluded for lack of proof of

participation in a supervised program.

(See the comparable provisions in parts

882, 960, and 966.)

Response. HUD has revised the rule in

response to this comment (See section

5.852(c) of the final rule).

Comment. One legal aid organization

criticized the provision that requires

evidence to be provided of participation

in rehabilitation program, claiming that

the requirement inherently conflicts

with the privacy of rehabilitation

records and the lack of any obligation

on the part of rehabilitation facilities to

provide information to PHAs or owners.

Response. The statute contemplates

consideration by the PHA or owner of

such evidence. (see 42 U.S.C.

13661(b)(2).) In order to be able to

consider the evidence, the regulation

provides that the PHA or owner may

require the applicant or tenant to

provide it. In addition, the household

could provide the evidence voluntarily

to bolster its application for admission

or its response to a proposal to

terminate tenancy.

Comment. Two organizations

representing tenants objected to

provisions, such as proposed

§ 5.860(b)(1), that permit an owner or

PHA to require the exclusion from the

household of a person who engaged in

or is culpable for the drug use or alcohol

abuse. They contended that such

authority could be used against

individuals who have been in recovery

for a long period of time and present no

threat to other tenants or the premises.

They argued that such treatment would

constitute a violation of their rights

under the Fair Housing Act and the

Americans with Disabilities Act.

Response. This provision has no effect

unless the owner or PHA has the right

under the regulations to deny admission

or to terminate tenancy on the basis of

28786 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

the offending activity. The regulation

follows the statute.

Comment. Another commenter

suggested that HUD revise the rule’s

provision for conditional admission or

continued assistance to provide that

after the eligibility determination is

made, the household be allowed to

decide whether to revise its composition

to eliminate a member whose conduct

prevents admission or continued

occupancy for the entire household.

Response. Owners and PHAs may

permit withdrawal of a problematic

family member from the applicant’s

household once a negative decision has

been made, but there is no statutory

basis to require them to do so. The final

rule addresses this matter in § 5.852.

Comment. A legal organization

representing PHA interests and a

representative of public housing and

Section 8 tenants advocated extending

the discretion of PHAs to exclude a

household member to avoid evicting

innocent family members more broadly

than provided in the proposed rule. For

example, § 966.4(1)(5)(vi)(B) of the

proposed rule would give PHAs the

discretion to impose as a condition of

continued assistance to family members

the exclusion of the household member

engaged in alcohol and drug abuse but

does not cover criminal activity

generally.

Response. In fact, one section

currently mentions the authority to

exclude culpable family members with

respect to any action or failure to act on

the part of the family—

§ 982.552(c)(2)(ii), as amended on

October 21, 1999 (64 FR 56915). On

further reflection, HUD has decided that

the responsible entity’s authority to

exclude culpable family members

should be stated explicitly, and this

authority should apply to any basis for

termination. As discussed above, HUD

has created a section in 24 CFR part 5

to address this issue, § 5.852, and HUD

has revised sections that previously just

applied to drug and alcohol abuse to

deal more broadly with a responsible

entity’s authority in this area. HUD has

revised § 982.552(c) to reflect a PHA’s

authority generally in screening and

eviction.

K. Access to Criminal and Drug

Treatment Records and Information—

§§ 5.903, 5.905, 960.204, 960.205 and

982.553

Comment. A legal organization

representing PHA interests suggested

that information about a person being

subject to a lifetime sex offender

registration requirement might be

obtained in more than one way. The

organization requested that the rule

require denial of admission to an

applicant if law enforcement authorities

inform the owner or PHA that a member

of the household is subject to such a

requirement, making the public

document check or PHA criminal

history background check unnecessary

in such a circumstance.

Response. The method a responsible

entity uses to assure that it is not

admitting a person ineligible on this

basis is up to the responsible entity,

based on its assessment of good

business practice. The primary

regulatory provision on sex offender

registration verification is § 5.905,

which applies only to obtaining records

under section 578 of the 1998 Act (42

U.S.C. 13663). (See also §§ 960.204(a)(4)

and 982.553(a)(2)(ii).) A responsible

entity may verify such information in

another manner, such as obtaining

information lawfully from law

enforcement agencies or other sources,

or directly accessing a listing of persons

subject to a lifetime registration

requirement under a State sex offender

registration program.

Comment. A PHA asked what

agencies maintain information about

persons who are subject to a lifetime sex

offender registration requirement. The

PHA stated that its local law

enforcement agencies do not keep this

information.

Response. Many states have passed

legislation that authorizes the

establishment of automated data bases

that provide information on all

registered sex offenders. (For example,

the Texas Department of Public Safety

maintains a web site at

www.sexoffenders.com with this

information, in compliance with State

law.) In states where an automated

system is not yet in operation, a

responsible entity may need to perform

another form of criminal history check.

In such States, a computerized inquiry

may generate a message that suggests

contacting the Governor’s office or

District Attorney to obtain information

on registered sex offenders.

Comment. A PHA organization

objected to the provisions of § 5.902(d)

and (e) of the proposed rule, which

provide for PHAs to obtain records for

owners and to apply owners’

admissions standards, and the

underlying statutory provisions. The

organization stated that PHAs are not in

the business of interpreting leases and

owners’ application criteria and that

this function is not consistent with the

responsibility or mission of public

housing.

Response. The statute (42 U.S.C.

1437d(q)(1)(B) requires these

procedures, which are found in § 5.903

of the final rule.

Comment. A legal organization

representing PHA interests suggested

that § 5.902(f) of the proposed rule be

modified to provide that a PHA could

condition the performance of criminal

records checks and applying the

owner’s admissions standards on

obtaining a reasonable agreement with

the owner holding the PHA harmless

from costs associated with third-party

claims and litigation arising out of the

performance of these services. The

organization recommended that the rule

specifically hold PHAs harmless from

legal actions directed at the owner

because of the owner’s admission

policies, action or inaction, and

regarding the owner’s use of criminal

conviction records, should the PHA be

required to disclose them in accordance

with § 5.902(f)(8) of the proposed rule.

Response. Congress has made

performance of these criminal records

checks for owners part of the

responsibilities of PHAs. (See 42 U.S.C.

1437d(q)(1)(B).) They must, therefore,

perform them in accordance with legal

requirements, including the

requirements not to act negligently and

to adhere to confidentiality provisions

of the statute. However, HUD agrees that

PHAs should not be required to absorb

costs incurred as the result of being

brought into litigation arising from a

challenge to the validity of an owner’s

admission standards.

The final rule makes two changes in

response to this comment. Paragraph

(d)(4) of § 5.903 provides that the

reasonable costs incurred by a PHA for

which the PHA is entitled to

reimbursement includes not only any

fees charged to the PHA by the law

enforcement agency but also the PHA’s

own related staff and administrative

costs. The administrative costs would

include a portion of insurance costs to

cover any potential liability for

performing functions for owners and

litigation costs that are solely

attributable to the owner’s policies.

With respect to release of criminal

records to the owner, § 5.903(e)(2) of the

final rule provides protection for a PHA

requested to release records in

connection with an eviction. The new

paragraph provides that the PHA may

rely on an owner’s certification that the

criminal record is necessary to proceed

with a judicial eviction to evict the

tenant based on criminal activity of the

identified household member as

demonstrated by the criminal

conviction record.

Comment. An owner’s representative

suggested that HUD require current

residents to sign consent release forms

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28787

for criminal background checks at the

annual reexaminations. Otherwise,

problem tenants may refuse to sign a

consent form.

Response. The occasion for residents

to sign a consent form for verifications

related to their occupancy of assisted

housing is not currently prescribed by

regulation. HUD declines to change that

policy in this rulemaking, but is

exploring a possible change in this

policy in the future.

Comment. One PHA reported that the

FBI has refused to give the PHA the

identification number that is necessary

to access the background records

because the PHA does not administer a

public housing program, in addition to

its Section 8 housing assistance

programs.

Response. Section 575(c) of the

QHWRA expanded the applicability of

criminal background check authority

from ‘‘public housing’’ to ‘‘covered

housing assistance,’’ which includes

tenant-based and project-based

assistance under Section 8. That section

also required that a PHA receiving

information on behalf of an owner keep

the information it receives confidential,

in accordance with regulations to be

prescribed by HUD. Therefore, the FBI

is awaiting publication of this final rule

before providing access to criminal

records to PHAs that do not administer

a public housing program.

Comment. A PHA and a

representative of housing owners

reported that private apartment owners

routinely obtain criminal conviction

records, as well as numerous other types

of confidential records, directly or

through firms that provide screening

services. They questioned the need to

give PHAs responsibility to obtain such

records and apply the owner’s criteria to

screen applicants. One suggested this

only be done where an owner certifies

and documents that it is unable to

access criminal conviction records

directly or through a readily available

service. The other recommended that

the rule authorize owners to obtain the

records directly and require them to

establish a system of records

management that would adequately

safeguard them.

Response. The final rule is not

changed with respect to this request.

The statute does not require that access

through PHAs be a last resort. This rule

does not prevent owners from obtaining

records in another way, as stated in

§ 5.903 of the final rule.

Comment. A PHA indicated that the

rule provisions authorizing PHAs to

charge owners a fee for obtaining

criminal records relevant to the owner’s

admission or occupancy standards

ignore the difficulty of establishing what

is a reasonable fee. How will disputes be

resolved? Other PHAs indicated that

they do not have the staff to perform the

criminal records (or sex offender

registration) check function, and

charging a fee could not provide

sufficient compensation for them to hire

additional staff. They also objected to

expecting a PHA to review owners’

policies and make decisions regarding

admission for the owners, saying it

would be an undue burden and would

subject the PHA to potential liability.

Response. The statute requires PHAs

to perform the function. They may,

however, pass along the costs

attributable to performing this function

to the owner. See discussion above

responding to concerns about liability.

HUD trusts that owners and PHAs will

be able to reach agreement on

reasonable fees to reimburse PHAs for

their costs.

Comment. Two State housing finance

agencies and an organization

representing State housing agencies

questioned whether the statute and

regulation requiring a PHA to obtain

criminal records on behalf of an owner

apply to their operation of Section 8

New Construction and Substantial

Rehabilitation projects. Although they

agreed that criminal records are

required to be provided by PHAs

administering ‘‘covered housing

assistance,’’ which does include such

projects, they stated that the term used

with respect to owner requests for

assistance is ‘‘project-based assistance

under Section 8,’’ which is defined in

section 8(f)(6) not to include new

construction and substantial

rehabilitation projects. They argued that

project owners should be responsible for

performing this function.

Response. The legislative history

indicates a clear intent to cover new

construction and substantial

rehabilitation projects under the

provision requiring PHA performance of

this function. (See H.R. 2, 105th Cong.,

2d Sess. § 641, and especially § 645; S.

462, 105th Cong., 2d Sess. §§ 301 and

305 (1998).)

Comment. One of these State housing

finance agencies took the approach that

none of the provisions of Subpart J,

concerning criminal background checks,

should be applicable to State housing

finance agencies. The agency argued

that it entered the program as a financier

of projects, using that skill to get the

projects built, and criminal background

checks were not required at that time.

The State agency’s skills are not related

to the skills necessary for this function,

and owners can get this kind of

information in other ways. ‘‘Addition of

this responsibility is a unilateral

expansion of a PHA’s responsibilities,

not only with respect to the projects

whose HAP contracts the PHA

administers, but also with respect to any

assisted housing that exists within the

PHA’s jurisdiction, whether or not there

is a contractual relationship between the

PHA and the owner.’’

Response. The rule is not changed,

because the statute applies this

provision to all PHAs, including State

housing finance agencies that are

administering programs covered under

24 CFR 5.100.

Comment. Section 5.902(e)(1)(i) of the

proposed rule permits use of criminal

conviction records for applicant

screening for all the covered programs.

However, § 5.902(e)(1)(ii) of the

proposed rule explicitly excludes the

Section 8 tenant-based assistance

program from using the records for lease

enforcement and eviction. This poses a

problem in persuading owners to

participate in the program, according to

two representatives of owners.

Response. This distinction is based on

the statute. Section 6(q)(1)(B) of the

1937 Act is limited to obtaining

information for owners of project-based

Section 8 projects.

Comment. A legal aid organization

pointed out that § 966.4(l)(5) of the

proposed rule provides that public

housing leases must provide that if a

‘‘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.’’

Section 982.553(d) contains a similar

provision with respect to the Section 8

tenant-based assistance program.

However, § 5.902 of the proposed rule

does not provide an applicant or tenant

of a Section 8 project-based project the

right to see and dispute the accuracy

and relevance of a criminal conviction,

as required by the statute (section

6(q)(2) of the 1937 Act). Tenants of

project-based assistance should have

this opportunity to dispute a record to

be used in case of denial of admission,

lease enforcement and/or eviction. The

PHA that obtains the records should be

the entity that provides the right to

dispute the accuracy or relevance of the

record.

Response. Section 5.903(g) of the

proposed rule (§ 5.903(f) of the final

rule) provides for the PHA to offer such

an opportunity with respect to sex

offender registration information. A

28788 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

similar paragraph has been added to the

general criminal records section and to

§ 966.4(l)(5).

Comment. A PHA stated that

§ 966.4(l)(5)(iv) of the proposed rule is

inconsistent with § 966.51(a)(2), which

permits a PHA to omit a grievance

hearing and proceed directly with court

action where there is a termination of

tenancy or eviction that involves threat

to the health, safety, or right to peaceful

enjoyment of the premises by other

tenants or employees of the PHA or any

drug-related criminal activity.

Response. Under § 966.51(a)(2), the

opportunity to dispute the accuracy and

relevance of the record required by

§ 966.4(l)(5) may be provided at the

eviction proceeding rather than at a

grievance hearing, if the direct eviction

proceeding is authorized.

Comment. A legal aid organization

stated that the rule does not give tenants

a chance to dispute the criminal record

and its relevancy before the adverse

action is taken, i.e., before the eviction

action is filed in court. The organization

bases the right of tenants to have this

opportunity on section 6(q)(2) of the

1937 Act, which requires that before an

adverse action is taken with respect to

assistance under the assisted housing

programs on the basis of a criminal

record, the PHA must provide the tenant

or applicant a copy of the record an

opportunity to dispute the accuracy and

relevance of the record. The

organization recommends changing the

rule language allowing the challenge ‘‘in

the grievance hearing or court trial’’ to

allowing this challenge ‘‘before the

grievance hearing or commencement of

court proceedings.’’

Response. Allowing the record to be

disputed in the grievance hearing or the

trial, rather than before such events,

protects tenants and applicants

sufficiently from ‘‘adverse action’’ and

comports with due process. The actual

adverse action does not occur until the

completion of the proceeding. HUD

declines to add an unnecessary layer of

administrative proceedings.

Comment. A legal aid organization

also recommended that the rule include

a statement that the rule does not

preempt any state law that provides

stronger protections for the subject of

criminal record inquiries, such as where

the opportunity to dispute is stronger.

Response. Congress did not address

the issue of preemption, and HUD

declines to generalize.

Comment. A legal services

organization and a mental health

organization objected to the language of

§ 960.204(c)(3) of the proposed rule

requiring a drug abuse treatment facility

to provide information at the request of

a PHA. They stated that the law

governing release of such information,

the Public Health Service Act (42 U.S.C.

290dd–2) and implementing regulations

(42 CFR part 2), authorizes but does not

require the release of information if the

patient has signed an appropriate

consent form. They urged HUD to

remove this paragraph. A legal

organization representing PHAs took the

other side of the argument. This

organization stated that drug treatment

facilities should be required to provide

the information requested by PHAs as

long as the request is made consistent

with the Public Health Service Act.

Such information is necessary to

successful implementation of the

provisions of the 1998 Act.

Response. The 1998 Act does not

require release of the information. The

Act states that the facility will not be

liable for damages for releasing

information if done consistent with the

Public Health Service Act. The final rule

(in § 960.205, which now addresses this

matter) removes the subject paragraph,

relying instead on the paragraph that

emphasizes the lack of liability for

proper release.

Comment. Section 960.204(c) of the

proposed rule should reference the

Public Health Service Act, 42 U.S.C.

290dd-2 and the HHS implementing

regulations, 42 CFR part 2, to make sure

that PHAs are aware of all the relevant

law, according to a legal aid

organization. HUD should provide a

model form to be used for consent to

access treatment facility records.

Response. The proposed rule did

reference the statute in § 960.204(d)(3).

The final rule adds the requested

statutory and regulatory reference to

§ 960.205(c)(1).

Comment. To conform to section 6(t)

of the 1937 Act, there are two points at

which the rule must assure

nondiscrimination, a legal aid

organization insists. First, § 960.204(c)

must be revised to clarify that the

treatment facility consent form may

only be requested of an applicant if all

applicants are asked to sign such a form.

Second, the PHA must make inquiry

only about every applicant or about

every applicant that satisfies the

statutory criteria related for special

interest. This commenter urged HUD to

use the carefully crafted language of the

statute on this point.

Response. The final rule (in

§ 960.205(c)) clarifies that a PHA may

require an applicant to sign a consent

form for obtaining information from a

drug abuse treatment facility only if all

applicants are required to provide such

consent.

Comment. Section 960.204(d) of the

proposed rule recognizes the authority

of a treatment facility to charge the PHA

a fee for providing information. A legal

aid organization suggests that the rule

clarify that there is no statutory basis for

the PHA to pass these fees on to the

applicant or resident.

Response. The statute is silent with

respect to this issue. However,

historically the costs for obtaining and

verifying necessary information to admit

applicants and make subsequent

determinations about their income and

rent have been considered an expense of

doing business for the PHA or owner,

covered through the administrative fee

or operating subsidy (see §§ 5.903(d)(4)

and 982.553(d)(3)), since the purpose of

the programs is to serve low income

families. Therefore, consistent with

current HUD policy, the rule

(§ 960.205(d)(5)) prohibits PHAs and

owners from passing on the cost of

obtaining drug abuse treatment facility

records to applicants or residents.

Comment. The question of a PHA’s

liability for its policy on using a consent

form for applicants to inquire about

them at drug abuse treatment facilities

is not addressed in the rule, one PHA

stated. Proposed § 960.204(e) describes

the two possible policies that are

permitted. Another paragraph should be

added to declare that a PHA will not be

liable for damages based on which

policy the PHA adopts.

Response. Section 960.205(d)(4) of the

final rule is clear that the PHA is not

liable if the PHA does not request or

receive information of this sort.

L. Management of Records—5.903(g),

and 960.205(f)

Comment. PHAs and the FBI

commented on management of the

records. (Proposed § 960.204(f)(1)(iii)(B)

provides that a drug abuse treatment

facility record be destroyed after the

statute of limitations for a civil action

has expired—presumably without a suit

having been filed. Sections 5.902(g) and

5.903(f) of the proposed rule provide

more generally that criminal records

must be destroyed once the purpose for

which the record was requested has

been accomplished.) PHAs objected to

keeping the record of criminal

conviction separate from the applicant

or tenant file and to the requirement

that the record be destroyed once it is

no longer needed. Their concern is that

they would not have ready access to the

record to defend a denial of admission

to a program.

Response. To assure the

confidentiality of criminal records, the

final rule (§ 5.903(g)) adopts the

approach used with respect to drug

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28789

abuse treatment facility records for

criminal records. The records must be

destroyed when the purpose(s) for

which the record was requested has

been accomplished and the time has

expired for a challenge to the action

being taken without the institution of a

court action, or final disposition of any

such litigation has been concluded. We

note that a PHA might use application

and consent forms that apply to all of its

housing programs. In that case, the PHA

might retain a record until it had acted

on the application with respect to all of

its programs before concluding that all

of the purposes for which the record

was sought have been accomplished.

This authority in no way prevents a

PHA from disposing of the record after

using it with respect to the first program

on which the PHA makes a

determination and obtaining more

recent records before making a

subsequent determination for another

program with respect to the same

applicant.

Comment. Proposed § 960.204(f)

addresses when treatment facility

information must be destroyed. A legal

aid organization stated that the statute’s

provision that an applicant’s consent

expires 5 days after the PHA’s decision

to approve or deny the application,

means that the rule should provide for

destruction of the record containing

such information 5 days after the

decision to approve the application. The

record should not be allowed to be kept

until 5 days after admission to a unit,

since placement on a waiting list might

take place substantially before

admission to a unit.

Response. The rule does not delay

destruction of the record until actual

admission. Section 960.205(c)(2) of the

final rule provides that the consent form

expires automatically after the PHA

makes the final decision to either

approve or deny the admission of such

person. However, § 960.205(f) provides

that, if the person is denied admission,

the record is to be destroyed in a timely

manner after the statute of limitations

for a civil action challenging the denial

has expired. This provision tracks the

statute and is necessary to assure that

the PHA has the necessary records to

respond to possible litigation. The final

rule expands on this provision so that,

if a court challenge is filed, the rule

permits preservation of the record until

final disposition of the action.

Comment. On the other side of the

issue, the FBI wanted the actual

criminal record to be sealed. The FBI

stated that although the applicant or

tenant’s record would have to refer to

the existence of a criminal record

concerning a household member, the

actual record should not be maintained

in a manner to allow access for

unofficial purposes.

Response. In view of the penalties for

unauthorized disclosure provided by

section 6(q)(1) of the 1937 Act—

misdemeanor conviction, $5,000 fine,

and liability for damages and attorney

fees and costs—the agencies have agreed

that it is unnecessary to provide that the

record be sealed.

Comment. A PHA objected to the

requirement of proposed § 960.204(c)(2)

that requires that the consent form used

to obtain information from a drug

treatment facility expire automatically

after the PHA has made a final decision

to approve or disapprove an application

for admission. A single consent form is

routinely used for many agencies, which

is often updated annually.

Response. The statute specifies this

limitation (found in § 960.205(c)(2) of

the final rule). PHAs can alter the

consent forms they use to address the

statutory requirement.

Comment. A legal aid organization

recommended that the penalties for

violation of confidentiality obligations

be stated clearly in any section dealing

with access to criminal records. The

organization also recommended that

PHAs be instructed in the use of NCIC

records, especially the fact that any

incident for which there is no final

disposition must be treated as if the

subject is innocent.

Response. The final rule includes

reference to the penalties for violation of

confidentiality obligations, as well as

referencing that some sources (such as

the NCIC) may specify how their records

are to be used. (See revised § 5.903 of

the final rule.)

Comment. In connection with use of

a criminal conviction record in judicial

eviction proceedings, the FBI wanted

the PHA (and not the owner) to retain

the records if the PHA took

responsibility for initiating the

proceedings. If the information must be

provided to owners, the FBI

recommended establishing a penalty for

misuse of the information similar to that

provided for misuse by officers,

employees, and authorized

representatives of a PHA. And the

consent form used by owners should

reflect the possible use of criminal

records in an eviction action.

Response. The statute provides that

‘‘any person’’ who knowingly and

willfully discloses criminal records

information obtained under the

authority of section 575 of the 1998 Act

to an individual not authorized by law

to receive it is subject to conviction of

a misdemeanor and a fine of up to

$5,000. The statute gives examples of

who is covered by the term ‘‘any

person’’ that relate to PHA agents—not

project owners, but the words do not

limit the term’s meaning to PHA agents.

The final rule includes project owners

in the examples of entities who may be

subject to a criminal penalty. The

statute does not appear to authorize

civil liability against any entity other

than a PHA, so the rule reflects that

conclusion. The rule is silent about the

content of the owner’s consent form.

Comment. Section 960.203(e) of the

proposed rule provides that before

denying admission to the public

housing program on the basis of a

criminal record, the PHA must provide

the ‘‘household’’ with a copy of the

record. Section 982.553(d) has a

comparable provision, using the term

‘‘family’’ instead of ‘‘household.’’ The

FBI commented that dissemination of

criminal records is limited to those with

authorization (such as the PHA) and the

person who is the ‘‘subject’’ of the

record, not to other persons in the

household.

Response. The final rule reflects

HUD’s statutory requirement to provide

information to the applicant or tenant to

permit the applicant or tenant to dispute

the accuracy or relevance of the record.

(See §§ 5.903, 5.905, 960.205, 966.4, and

982.553, implementing 42 U.S.C.

1437d(q) and 13663(d).)

Comment. If a PHA currently obtains

criminal conviction records, i.e.,

without the authority of the new rule,

and obtains drug abuse treatment

program records without this new

authority, is the PHA free of the

restrictions on records management

imposed by the new rule? Although

§ 5.903(f)(2) of the proposed rule,

concerning sex offender registration,

and § 960.204(f), concerning drug abuse

treatment program information, refer to

information received under the

authority of their provisions, § 5.902 of

the proposed rule, concerning criminal

conviction records, is not so limited.

The final rule should emphasize that

current information collection practices

dealing with all of these subjects may

continue unaffected by the new rule.

Response. The rule does not affect

other means used by PHAs to verify

suitability for admission. However,

HUD cautions PHAs and owners to

handle any information obtained from

other records in accordance with

applicable State and Federal privacy

laws and with the provisions of the

consent forms signed by applicants.

Comment. A legal services

organization urged HUD to emphasize,

in the rule or preamble, that a PHA or

owner cannot avoid the records

safeguards of this rule by requiring the

28790 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

applicant to obtain the information for

them. PHAs and owners should be

directed not to rely on criminal

conviction records obtained from credit

reports.

Response. The final rule clarifies that

records received directly from the

family are subject to the limitations of

this subpart. Since PHAs and owners

may determine that a household

member has engaged in criminal activity

without relying on a conviction, HUD is

not prohibiting them from consulting

evidence from sources other that those

provided under proposed 24 CFR part 5,

subpart I.

M. Miscellaneous

Comment. One criticism of the rule’s

organization was that any provision that

might involve access to criminal records

or lifetime sex offender registries should

include a cross-reference to the sections

stating the requirements for gaining

access, and the associated protections.

Response. The final rule adds these

cross-references to 24 CFR part 5,

subpart J. (See §§ 882.518(b)(3), 960.204,

966.4(l)(5), 982.310(c)(3), and

982.553(d).)

Comment. A legal services

organization criticized the revision of

§ 966.4(l)(2)(i) of the proposed rule on

the basis that HUD’s revision eliminates

the distinction between serious lease

violations and minor lease violations.

The organization stated that this section,

as revised, categorizes as serious ‘‘any

violation of a household obligation

under § 966.4(f).’’ This commenter

recommended that the paragraph be

revised to state that a serious lease

violation ‘‘includes a serious violation

of any material term of the lease or a

serious violation of any household

obligation described in paragraph (f) of

this section.’’

Response. The final rule follows the

organization of this section made by

another recently published final rule

that addresses admission and

occupancy issues (65 FR 16730–16731,

March 29, 2000). That rule restored the

language concerning serious lease

violations that this commenter favored.

This final rule now only adds the

provisions needed in this section to

implement the provisions of the 1998

Act.

Comment. A representative of PHA

interests suggested that the rule

authorize termination of tenancy in two

additional cases: (1) where the PHA

attempted to obtain criminal

background information before

admitting an applicant but only

discovers after admission the facts that

should have disqualified the tenant

because of a criminal conviction; and (2)

where the tenant is found to have made

one or more material false statements or

omissions or otherwise committed fraud

in connection with any application for

assistance or recertification. The

commenter stated that this would afford

PHAs a method of avoiding tort

exposure that might result from the

continued presence of potentially

dangerous individuals.

Response. In the final rule, these two

examples have replaced the examples

relating to criminal activity stated as

‘‘other good cause’’ in the proposed

rule. (Criminal activity is already

specifically listed as a grounds for

termination under paragraphs (l)(2)(ii),

referring to paragraph (l)(5) of § 966.4.)

Comment. A representative of assisted

tenants recommended that HUD endorse

the practice of using an informal fact

finding committee before terminating

any tenancy. The committee, to be

composed of tenants and staff, could

interview residents and neighbors and

investigate allegations of criminal or

drug-related incidents, making findings

of fact on which a decision to proceed

with termination would be based.

Another residents’ representative

recommended that the final rule require

all PHAs to establish a panel of

residents and PHA staff to set policy

and oversee implementation of the

PHA’s grievance procedure.

Response. Owners of project-based

assistance developments are encouraged

to employ administrative actions to

resolve potential eviction cases before

resorting to court action. The rule does

not prescribe particular procedures.

PHA grievance procedure operation is

unchanged in this rule.

Comment. A PHA was disappointed

that the rule does not address how to

handle domestic violence, which is

often related to drug and alcohol abuse,

and for which eviction is often a remedy

that would penalize the victim. The

PHA recommended that HUD require

tenants who are victims or perpetrators

of domestic violence to counseling

within 72 hours of the occurrence. Only

after such counseling is ineffective

would eviction proceedings be initiated.

Response. If a responsible entity has

grounds to evict a family because of

domestic violence (for violent criminal

activity), then the entity has the

authority to take various actions short of

eviction. Those may include the

counseling suggested by the commenter

or permitting continued occupancy on

condition that the household member

who has committed the domestic

violence is removed from the lease and

vacates the unit.

IV. Findings and Certifications

Paperwork Reduction Act

The information collections contained

in §§ 5.853, 5.854, 5.855, 5.903, 5.905,

882.517, 960.205a, and 982.553 have

been approved by the Office of

Management and Budget under the

Paperwork Reduction Act of 1995 (44

U.S.C. Chapter 35) and assigned OMB

approval number 2577–0232. 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.

Environmental Impact

A Finding of No Significant Impact

with respect to the environment was

made in connection with publication of

the proposed rule, 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

applicable to this final rule and 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 final 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 final rule under

Executive Order 12866, Regulatory

Planning and Review. OMB determined

that this final 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 final 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.

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28791

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 final 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

were described in some detail in the

preamble to the proposed rule, and they

are applicable to this final rule, as well.

No public comments addressed this

issue, in response to the specific request

for comment regarding any less

burdensome alternatives to the

proposed rule that would meet HUD’s

objectives as described in that rule.

Executive Order 13132, Federalism

This final rule does not impose

substantial direct compliance costs on

State and local governments or preempt

State law within the meaning of

Executive Order 13132.

Catalog

The Catalog of Federal Domestic

Assistance numbers for the programs

affected by this interim 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.

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.

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 § 5.100 by adding the

definitions of covered person, drug,

drug-related criminal activity, federally

assisted housing, guest, household,

other person under the tenant’s control,

premises, and violent criminal activity

in alphabetical order:

§ 5.100 Definitions.

Covered person, for purposes of 24

CFR 5, subpart I, and parts 966 and 982,

means a tenant, any member of the

tenant’s household, a guest or another

person under the tenant’s control.

* * * * *

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

of the U.S. Housing Act of 1937 (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–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).

* * * * *

Guest, only for purposes of 24 CFR

part 5, subparts A and I, and parts 882,

960, 966, and 982, means a person

temporarily staying in the unit with the

consent of a tenant or other member of

the household who has express or

implied authority to so consent on

behalf of the tenant. The requirements

of parts 966 and 982 apply to a guest as

so defined.

* * * * *

Household, for purposes of 24 CFR

part 5, subpart I, and parts, 960, 966,

882, and 982, means the family and

PHA-approved live-in aide.

* * * * *

Other person under the tenant’s

control, for the purposes of the

definition of covered person and for

parts 5, 882, 966, and 982 means that

the person, although not staying as a

guest (as defined in this section) in the

unit, is, or was at the time of the activity

in question, on the premises (as

premises is defined in this section)

28792 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

because of an invitation from the tenant

or other member of the household who

has express or implied authority to so

consent on behalf of the tenant. Absent

evidence to the contrary, a person

temporarily and infrequently on the

premises solely for legitimate

commercial purposes is not under the

tenant’s control.

Premises, for purposes of 24 CFR part

5, subpart I, and parts 960 and 966,

means the building or complex or

development in which the public or

assisted housing dwelling unit is

located, including common areas and

grounds.

* * * * *

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, serious

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—Denying Admission and

Terminating Tenancy for Criminal Activity

or Alcohol Abuse

General

Sec.

5.850 Which subsidized housing is covered

by this subpart?

5.851 What authority do I have to screen

applicants and evict tenants?

5.852 What discretion do I have in

screening and eviction actions?

5.853 Definitions.

Denying Admissions

5.854 When must I prohibit admission of

individuals who have engaged in drugrelated criminal activity?

5.855 When am I specifically authorized to

prohibit admission of individuals who

have engaged in criminal activity?

5.856 When must I prohibit admission of

sex offenders?

5.857 When must I prohibit admission of

alcohol abusers?

Terminating Tenancy

5.858 When authority do I have to evict

drug criminals?

5.859 When am I specifically authorized to

evict other criminals?

5.860 When am I specifically authorized to

evict alcohol abusers?

5.861 What evidence of criminal activity

must I have to evict?

Subpart I—Preventing Crime in

Federally Assisted Housing—Denying

Admission and Terminating Tenancy

for Criminal Activity or Alcohol Abuse

General

§ 5.850 Which subsidized housing is

covered by this subpart?

(a) If you are the owner of federally

assisted housing, your federally assisted

housing is covered, except as provided

in paragraph (b) or (c) of this section.

(b) If you are operating public

housing, this subpart does not apply,

but similar provisions applicable to

public housing units are found in parts

960 and 966 of this title. If you

administer tenant-based assistance

under Section 8 or you are the owner of

housing assisted with tenant-based

assistance under Section 8, this subpart

does not apply to you, but similar

provisions that do apply are located in

part 982 of this title.

(c) If you own or administer housing

assisted by the Rural Housing

Administration under section 514 or

section 515 of the Housing Act of 1949,

this subpart does not apply to you.

§ 5.851 What authority do I have to screen

applicants and to evict tenants?

(a) Screening applicants. You are

authorized to screen applicants for the

programs covered by this part. The

provisions of this subpart implement

statutory directives that either require or

permit you to take action to deny

admission to applicants under certain

circumstances in accordance with

established standards, as described in

this subpart. The provisions of this

subpart do not constrain your authority

to screen out applicants who you

determined are unsuitable under your

standards for admission.

(b) Terminating tenancy. You are

authorized to terminate tenancy of

tenants, in accordance with your leases

and landlord-tenant law for the

programs covered by this part. The

provisions of this subpart implement

statutory directives that either require or

permit you to terminate tenancy under

certain circumstances, as provided in 42

U.S.C. 1437f, 1437n, and 13662, in

accordance with established standards,

as described in this subpart. You retain

authority to terminate tenancy on any

basis that is otherwise authorized.

§ 5.852 What discretion do I have in

screening and eviction actions?

(a) General. If the law and regulation

permit you to take an action but do not

require action to be taken, you may take

or not take the action in accordance

with your standards for admission and

eviction. Consistent with the

application of your admission and

eviction standards, you may consider all

of the circumstances relevant to a

particular admission or eviction case,

such as:

(1) The seriousness of the offending

action;

(2) The effect on the community of

denial or termination or the failure of

the responsible entity to take such

action;

(3) The extent of participation by the

leaseholder in the offending action;

(4) The effect of denial of admission

or termination of tenancy on household

members not involved in the offending

action;

(5) The demand for assisted housing

by families who will adhere to lease

responsibilities;

(6) The extent to which the

leaseholder has shown personal

responsibility and taken all reasonable

steps to prevent or mitigate the

offending action; and

(7) The effect of the responsible

entity’s action on the integrity of the

program.

(b) Exclusion of culpable household

member. You may require an applicant

(or tenant) to exclude a household

member in order to be admitted to the

housing program (or continue to reside

in the assisted unit), where that

household member has participated in

or been culpable for action or failure to

act that warrants denial (or termination).

(c) Consideration of rehabilitation. (1)

In determining whether to deny

admission or terminate tenancy for

illegal use of drugs or alcohol abuse by

a household member who is no longer

engaged in such behavior, you 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 (42 U.S.C. 13661). For this

purpose, you may require the applicant

or tenant to submit evidence of the

household member’s current

participation in, or successful

completion of, a supervised drug or

alcohol rehabilitation program or

evidence of otherwise having been

rehabilitated successfully.

(2) If rehabilitation is not an element

of the eligibility determination (see

§ 5.854(a)(1) for the case where it must

be considered), you may choose not to

consider whether the person has been

rehabilitated.

(d) Length of period of mandatory

prohibition on admission. If a statute

requires that you prohibit admission of

persons for a prescribed period of time

after some disqualifying behavior or

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event, you may apply that prohibition

for a longer period of time.

(e) Nondiscrimination limitation.

Your admission and eviction actions

must be consistent with fair housing

and equal opportunity provisions of

§ 5.105.

§ 5.853 Definitions.

(a) Terms found elsewhere. The

following terms are defined in subpart

A of this part: 1937 Act, covered person,

drug, drug-related criminal activity,

federally assisted housing, guest,

household, HUD, other person under

the tenant’s control, premises, public

housing, public housing agency (PHA),

Section 8, violent criminal activity.

(b) Additional terms used in this part

are as follows.

Currently engaging in. With respect to

behavior such as illegal use of a drug,

other drug-related criminal activity, or

other criminal activity, currently

engaging in means that the individual

has engaged in the behavior recently

enough to justify a reasonable belief that

the individual’s behavior is current.

Owner. The owner of federally

assisted housing.

Responsible entity. For 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

Annual Contributions Contract with

HUD. For all other federally assisted

housing, the responsible entity means

the owner of the housing.

Denying Admissions

§ 5.854 When must I prohibit admission of

individuals who have engaged in drugrelated criminal activity?

(a) You must prohibit admission to

your federally assisted housing of an

applicant for three years from the date

of eviction if any household member

has been evicted from federally assisted

housing for drug-related criminal

activity. However, you may admit the

household if:

(1) The evicted household member

who engaged in drug-related criminal

activity has successfully completed an

approved supervised drug rehabilitation

program; or

(2) The circumstances leading to the

eviction no longer exist (for example,

the criminal household member has

died or is imprisoned).

(b) You must establish standards that

prohibit admission of a household to

federally assisted housing if:

(1) You determine that any household

member is currently engaging in illegal

use of a drug; or

(2) You determine that you have

reasonable cause to believe that a

household member’s illegal use or a

pattern of illegal use of a drug may

interfere with the health, safety, or right

to peaceful enjoyment of the premises

by other residents.

§ 5.855 When am I specifically authorized

to prohibit admission of individuals who

have engaged in criminal activity?

(a) You may prohibit admission of a

household to federally assisted housing

under your standards if you determine

that any household member is currently

engaging in, or has engaged in during a

reasonable time before the admission

decision:

(1) Drug-related criminal activity;

(2) Violent criminal activity;

(3) Other criminal activity that would

threaten the health, safety, or right to

peaceful enjoyment of the premises by

other residents; or

(4) Other criminal activity that would

threaten the health or safety of the PHA

or owner or any employee, contractor,

subcontractor or agent of the PHA or

owner who is involved in the housing

operations.

(b) You may establish a period before

the admission decision during which an

applicant must not have engaged in the

activities specified in paragraph (a) of

this section (reasonable time).

(c) If you previously denied

admission to an applicant because of a

determination concerning a member of

the household under paragraph (a) of

this section, you may reconsider the

applicant if you have sufficient

evidence that the members of the

household are not currently engaged in,

and have not engaged in, such criminal

activity during a reasonable period,

determined by you, before the

admission decision.

(1) You would have sufficient

evidence if the household member

submitted a certification that she or he

is not currently engaged in and has not

engaged in such criminal activity during

the specified period and provided

supporting information from such

sources as a probation officer, a

landlord, neighbors, social service

agency workers and criminal records,

which you verified. (See subpart J of

this part for one method of checking

criminal records.)

(2) For purposes of this section, a

household member is currently engaged

in the criminal activity if the person has

engaged in the behavior recently enough

to justify a reasonable belief that the

behavior is current.

§ 5.856 When must I prohibit admission of

sex offenders?

You 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 the screening of

applicants, you must perform necessary

criminal history background checks in

the State where the housing is located

and in other States where the household

members are known to have resided.

(See § 5.905.)

§ 5.857 When must I prohibit admission of

alcohol abusers?

You must establish standards that

prohibit admission to federally assisted

housing if you determine you have

reasonable cause to believe that a

household member’s abuse or pattern of

abuse of alcohol interferes with the

health, safety, or right to peaceful

enjoyment of the premises by other

residents.

Terminating Tenancy

§ 5.858 What authority do I have to evict

drug criminals?

The lease must provide that drugrelated criminal activity engaged in on

or near the premises by any tenant,

household member, or guest, and any

such activity engaged in on the premises

by any other person under the tenant’s

control, is grounds for you to terminate

tenancy. In addition, the lease must

allow you to evict a family when you

determine that a household member is

illegally using a drug or when you

determine that a pattern of illegal use of

a drug interferes with the health, safety,

or right to peaceful enjoyment of the

premises by other residents.

§ 5.859 When am I specifically authorized

to evict other criminals?

(a) Threat to other residents. The lease

must provide that the owner may

terminate tenancy for any of the

following types of criminal activity by a

covered person:

(1) Any criminal activity that

threatens the health, safety, or 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, safety, or 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 you may

terminate the tenancy during the term of

the lease if a tenant is:

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(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.

§ 5.860 When am I specifically authorized

to evict alcohol abusers?

The lease must provide that you may

terminate the tenancy if you determine

that a household member’s abuse or

pattern of abuse of alcohol threatens the

health, safety, or right to peaceful

enjoyment of the premises by other

residents.

§ 5.861 What evidence of criminal activity

must I have to evict?

You may terminate tenancy and evict

the tenant through judicial action for

criminal activity by a covered person in

accordance with this subpart if you

determine that the covered person has

engaged in the criminal activity,

regardless of whether the covered

person has been arrested or convicted

for such activity and without satisfying

a criminal conviction standard of proof

of the activity.

Subpart J—Access to Criminal Records and

Information

Sec.

5.901 To what criminal records and

searches does this subpart apply?

5.902 Definitions.

5.903 What special authority is there to

obtain access to criminal records?

5.905 What special authority is there to

obtain access to sex offender registration

information?

Subpart J

Access to Criminal Records and

Information

§ 5.901 To what criminal records and

searches does this subpart apply?

(a) General criminal records searches.

This subpart applies to criminal

conviction background checks by PHAs

that administer the Section 8 and public

housing programs when they obtain

criminal conviction records, under the

authority of section 6(q) of the 1937 Act

(42 U.S.C. 1437d(q)), from a law

enforcement agency to prevent

admission of criminals to public

housing and Section 8 housing and to

assist in lease enforcement and eviction.

(b) Sex offender registration records

searches. This subpart applies to PHAs

that administer the Section 8 and public

housing programs when they obtain sex

offender registration information from

State and local agencies, under the

authority of 42 U.S.C. 13663, to prevent

admission of dangerous sex offenders to

federally assisted housing.

(c) Excluded records searches. The

provisions of this subpart do not apply

to criminal conviction information or

sex offender information searches by a

PHA or others of information from law

enforcement agencies or other sources

other than as provided under this

subpart.

§ 5.902 Definitions.

(a) Terms found elsewhere. The

following terms used in this subpart are

defined in subpart A of this part: 1937

Act, drug, federally assisted housing,

household, HUD, public housing, public

housing agency (PHA), Section 8.

(b) Additional terms used in this

subpart are as follows:

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.

Covered housing. Public housing,

project-based assistance under section 8

(including new construction and

substantial rehabilitation projects), and

tenant-based assistance under section 8.

Law enforcement agency. The

National Crime Information Center

(NCIC), police departments and other

law enforcement agencies that hold

criminal conviction records.

Owner. The owner of federally

assisted housing.

Responsible entity. For the public

housing program, the Section 8 tenantbased 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

Annual Contributions Contract with

HUD. For all other Section 8 programs,

responsible entity means the Section 8

owner.

§ 5.903 What special authority is there to

obtain access to criminal records?

(a) Authority. If you are a PHA that

administers the Section 8 program and/

or the public housing program, this

section authorizes you to obtain

criminal conviction records from a law

enforcement agency, as defined in

§ 5.902. You may use the criminal

conviction records that you obtain from

a law enforcement agency under the

authority of this section to screen

applicants for admission to covered

housing programs and for lease

enforcement or eviction of families

residing in public housing or receiving

Section 8 project-based assistance.

(b) Consent for release of criminal

conviction records. (1) In order to obtain

access to records under this section, as

a responsible entity you must require

every applicant 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.

(c) Procedure for PHA. (1) When the

law enforcement agency receives your

request, the law enforcement agency

must promptly release to you 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.

(2) The law enforcement agency may

charge you a reasonable fee for releasing

criminal conviction records.

(d) Owner access to criminal

records.—(1) General. (i) If an owner

submits a request to the PHA for

criminal records concerning an adult

member of an applicant or resident

household, in accordance with the

provisions of paragraph (d) of this

section, the PHA must request the

criminal conviction records from the

appropriate law enforcement agency or

agencies, as determined by the PHA.

(ii) If the PHA receives criminal

conviction records requested by an

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, as applicable in accordance

with HUD regulations and the owner

criteria.

(iii) The PHA must notify the owner

whether the PHA 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 (e)(2)(ii) of this

section, the PHA must not disclose the

household member’s criminal

conviction record or the content of that

record to the owner.

(2) Screening. If you are an owner of

covered housing, you may request that

the PHA in the jurisdiction of the

property obtain criminal conviction

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records of an adult household member

from a law enforcement agency on your

behalf for the purpose of screening

applicants.

(i) Your request must include a copy

of the consent form, signed by the

household member.

(ii) Your request must include your

standards for prohibiting admission of

drug criminals in accordance with

§ 5.854, and for prohibiting admission of

other criminals in accordance with

§ 5.855.

(3) Eviction or lease enforcement. If

you are an owner of a unit with Section

8 project-based assistance, you may

request that the PHA in the location of

the project obtain criminal conviction

records of a household member from an

appropriate law enforcement agency on

your behalf in connection with lease

enforcement or eviction.

(i) Your request must include a copy

of the consent form, signed by the

household member.

(ii) If you intend to use the PHA

determination regarding any such

criminal conviction records in

connection with eviction, your request

must include your standards for evicting

drug criminals in accordance with

§ 5.857, and for evicting other criminals

in accordance with § 5.858.

(iii) If you intend to use the PHA

determination regarding any such

criminal conviction records for lease

enforcement other than eviction, your

request must include your standards for

lease enforcement because of criminal

activity by members of a household.

(4) Fees. 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, the PHA’s own

related staff and administrative costs.

The owner may not pass along to the

applicant or tenant the costs of a

criminal records check.

(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 Housing Choice

Voucher Program (section 8 tenantbased assistance) (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

(d) 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. (i) A

PHA may disclose the criminal

conviction records which the PHA

receives from a law enforcement agency

only as follows:

(A) 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.

(B) To the owner for use in

connection with judicial eviction

proceedings by the owner 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

offered as evidence.

(ii) This disclosure may be made only

if the following conditions are satisfied:

(A) 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

(B) If the owner certifies in writing

that it will use the criminal conviction

records only for the purpose and only to

the extent necessary to seek eviction in

a judicial proceeding of a Section 8

tenant based on the criminal activity by

the household member that is described

in the criminal conviction records.

(iii) The PHA may rely on an owner’s

certification that the criminal record is

necessary to proceed with a judicial

eviction to evict the tenant based on

criminal activity of the identified

household member, as shown in the

criminal conviction record.

(iv) Upon disclosure as necessary in

connection with judicial eviction

proceedings, the PHA is not responsible

for controlling access to or knowledge of

such records after such disclosure.

(f) Opportunity to dispute. If a PHA

obtains criminal record information

from a State or local agency under this

section showing that a household

member has been convicted of a crime

relevant to applicant screening, lease

enforcement or eviction, the PHA must

notify the household of the proposed

action to be based on the information

and must provide the subject of the

record and the applicant or tenant 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.

(g) Records management. Consistent

with the limitations on disclosure of

records in paragraph (e) of this section,

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(s) for

which the record was requested has

been accomplished, including

expiration of the period for filing a

challenge to the PHA action without

institution of a challenge or final

disposition of any such litigation.

(h) Penalties for improper release of

information.—(1) Criminal penalty.

Conviction for a misdemeanor and

imposition of a penalty of not more than

$5,000 is the potential for:

(i) Any person, including an officer,

employee, or authorized representative

of any PHA or of any project owner,

who knowingly and willfully requests

or obtains any information concerning

an applicant for, or tenant of, covered

housing assistance under the authority

of this section under false pretenses; or

(ii) Any person, including an officer,

employee, or authorized representative

of any PHA or a project owner, who

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knowingly and willfully discloses any

such information in any manner to any

individual not entitled under any law to

receive the information.

(2) Civil liability. (i) A PHA may be

held liable to any applicant for, or

tenant of, covered housing assistance

affected by either of the following:

(A) A negligent or knowing disclosure

of criminal records information

obtained under the authority of this

section about such person by an officer,

employee, or authorized representative

of the PHA if the disclosure is not

authorized by this section; or

(B) Any other negligent or knowing

action that is inconsistent with this

section.

(ii) An applicant for, or tenant of,

covered housing assistance may seek

relief against a PHA in these

circumstances by bringing a civil action

for damages and such other relief as

may be appropriate against the PHA

responsible for such unauthorized

action. The United States district court

in which the affected applicant or

tenant resides, in which the

unauthorized action occurred, or in

which the officer, employee, or

representative alleged to be responsible

resides, has jurisdiction. Appropriate

relief may include reasonable attorney’s

fees and other litigation costs.

§ 5.905 What special authority is there to

obtain access to sex offender registration

information?

(a) PHA obligation to obtain sex

offender registration information. (1) A

PHA that administers a Section 8 or

public housing program under an

Annual Contributions Contract with

HUD must carry out 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. This check must be carried out

with respect to the State in which the

housing is located and with respect to

States where members of the applicant

household are known to have resided.

(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.

(b) Owner’s request for sex offender

registration information.—(1) General.

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

Annual Contributions Contract 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) Procedure. If the request is made

in accordance with the provisions of

paragraph (b) of this section:

(i) The PHA must request the

information from a State or local agency;

(ii) The State or local agency must

promptly provide the PHA such

information in its possession or control;

(iii) The PHA must determine

whether such information may be a

basis for applicant screening, lease

enforcement or eviction, based on the

criteria used by the owner as specified

in the owner’s request, and inform the

owner of the determination.

(iv) The PHA must notify 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.

(3) Contents of request. As the owner,

your request must specify whether you

are asking the PHA to obtain the sex

offender registration information

concerning the household member for

applicant screening, for lease

enforcement, or for eviction and include

the following information:

(i) Addresses or other information

about where members of the household

are known to have lived.

(ii) If you intend to use the PHA

determination regarding any such sex

offender registration information for

applicant screening, your request must

include your standards in accordance

with § 5.855(c) for prohibiting

admission of persons subject to a

lifetime sex offender registration

requirement.

(iii) If you intend to use the PHA

determination regarding any such sex

offender registration information for

eviction, your request must include

your standards for evicting persons

subject to a lifetime registration

requirement in accordance with § 5.858.

(iv) If you intend to use the PHA

determination regarding any such sex

offender registration information for

lease enforcement other than eviction,

your request must include your

standards for lease enforcement because

of criminal activity by members of a

household.

(4) PHA disclosure of records. The

PHA must not disclose to the owner any

sex offender registration information

obtained by the PHA under this section.

(5) Fees. 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, the PHA’s

own related staff and administrative

costs. The owner may not pass along to

the applicant or tenant the costs of a sex

offender registration records check.

(c) 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, including

expiration of the period for filing a

challenge to the PHA action without

institution of a challenge or final

disposition of any such litigation.

(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.

(d) Opportunity to dispute. If a PHA

obtains sex offender registration

information from a State or local agency

under paragraph (a) of this section

showing that a household member is

subject to a lifetime sex offender

registration requirement, the PHA must

notify the household of the proposed

action to be based on the information

and must provide the subject of the

record, and the applicant or tenant, with

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).

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28797

5. Add a new § 200.37 to read as

follows:

§ 200.37 Preventing crime in federally

assisted housing.

See part 5, subparts I and J of this

title, for provisions concerning

preventing crime in federally assisted

housing, including programs

administered under section 236 and

under sections 221(d)(3) and 221(d)(5)

of the National Housing Act.

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 § 247.2, revise the last sentence

in the definition of ‘‘subsidized project’’

to read as follows:

§ 247.2 Definitions.

* * * * *

Subsidized 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 § 247.3, revise paragraph (a)(3) to

read as follows:

§ 247.3 Entitlement of tenants to

occupancy.

(a) * * *

(3) Criminal activity by a covered

person in accordance with sections

5.858 and 5.859, or alcohol abuse by a

covered person in accordance with

section 5.860. If necessary, criminal

records can be obtained for lease

enforcement purposes under section

5.903(d)(3).

* * * * *

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.

10. In § 880.607, revise paragraph

(b)(1)(iii) to read as follows:

§ 880.607 Termination of tenancy and

modification of lease.

* * * * *

(b) * * *

(1) * * *

(iii) Criminal activity by a covered

person in accordance with sections

5.858 and 5.859, or alcohol abuse by a

covered person in accordance with

section 5.860. If necessary, criminal

records can be obtained for lease

enforcement purposes under section

5.903(d)(3).

* * * * *

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 § 882.102, amend paragraph (b)

by removing the definitions of the terms

drug-related criminal activity, drugtrafficking, and violent criminal activity,

and revise paragraph (a) to read as

follows:

§ 882.102 Definitions.

(a) Terms found elsewhere. The

following terms are defined in part 5,

subpart A of this title: 1937 Act, covered

person, drug, drug-related criminal

activity, federally assisted housing,

guest, household, HUD, MSA, other

person under the tenant’s control,

public housing agency (PHA), Section 8,

and violent criminal activity.

* * * * *

13. In § 882.511, amend paragraph (a)

by adding after the heading a paragraph

designation (1), and by adding a new

paragraph (a)(2).

§ 882.511 Lease and termination of

tenancy.

(a) * * *

(2) The lease must provide that drugrelated criminal activity engaged in on

or near the premises by any tenant,

household member, or guest, and any

such activity engaged in on the premises

by any other person under the tenant’s

control is grounds for the owner to

terminate tenancy. In addition, the lease

must provide that the owner may

terminate the tenancy of a family when

the owner determines that a household

member is illegally using a drug or

when the owner determines that a

pattern of illegal use of a drug interferes

with the health, safety, or right to

peaceful enjoyment of the premises by

other residents.

* * * * *

§ 882.514 [Amended]

14. In § 882.514, remove paragraph

(a)(2) and redesignate paragraph (a)(3) as

paragraph (a)(2), and remove paragraph

(g).

15. Add § 882.518 to read as follows:

§ 882.518 Denial of admission and

termination of assistance for criminals and

alcohol abusers.

(a) Requirement to deny admission.—

(1) Prohibiting admission of drug

criminals. (i) The PHA must prohibit

admission to the program of an

applicant for three years from the date

of termination of tenancy if any

household member’s federally assisted

housing tenancy has been terminated for

drug-related criminal activity. However,

the PHA may admit the household if the

PHA determines:

(A) The household member who

engaged in drug-related criminal

activity and whose tenancy was

terminated has successfully completed

an approved supervised drug

rehabilitation program, or

(B) The circumstances leading to the

termination of tenancy no longer exist

(for example, the criminal household

member has died or is imprisoned).

(ii) 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.

(iii) The PHA must establish

standards that prohibit admission of a

household to the program if the PHA

determines that any household member

is currently engaging in illegal use of a

drug or that it has reasonable cause to

believe that a household member’s

pattern of illegal use of a drug, as

defined in § 5.100 of this title, may

threaten the health, safety, or right to

peaceful enjoyment of the premises by

other residents.

(2) Prohibiting admission of sex

offenders. 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

this 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 in the

State where the housing is located and

in other States where household

members are known to have resided.

(b) Authority to deny admission.—(1)

Prohibiting admission of other

criminals. The PHA may prohibit

admission of a household to the

program under standards established by

the PHA if the PHA determines that any

28798 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

household member is currently engaged

in or has engaged in during a reasonable

time before the admission decision:

(i) Drug-related criminal activity;

(ii) Violent criminal activity;

(iii) Other criminal activity which

may threaten the health, safety, or right

to peaceful enjoyment of the premises

by other residents;

(iv) Other criminal activity which

may threaten the health or safety of the

owner or any employee, contractor,

subcontractor or agent of the owner who

is involved in the owner’s housing

operations.

(2) Reasonable time. The PHA may

establish a period before the admission

decision during which an applicant

must not have engaged in the activities

specified in paragraph (b)(1) of this

section ‘‘reasonable time’’.

(3) Sufficient evidence. If the PHA has

denied admission to an applicant

because a member of the household

engaged in criminal activity in

accordance with paragraph (b)(1) of this

section, the PHA may reconsider the

applicant if the PHA has sufficient

evidence that the members of the

household are not currently engaged in,

and have not engaged in criminal

activity during a reasonable period, as

determined by the PHA, before the

admission decision.

(i) The PHA would have ‘‘sufficient

evidence’’ if the household member

submitted a certification that she or he

is not currently engaged in and has not

engaged in such criminal activity during

the specified period and provided

supporting information from such

sources as a probation officer, a

landlord, neighbors, social service

agency workers and criminal records,

which the PHA verified.

(ii) For purposes of this section, a

household member is ‘‘currently

engaged in’’ criminal activity if the

person has engaged in the behavior

recently enough to justify a reasonable

belief that the behavior is current.

(4) 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 a

household member’s abuse or pattern of

abuse of alcohol may threaten the

health, safety, or right to peaceful

enjoyment of the premises by other

residents.

(c) Terminating assistance.—(1)

Terminating assistance for drug

criminals. (i) The PHA may terminate

assistance for drug-related criminal

activity engaged in on or near the

premises by any tenant, household

member, or guest, and any such activity

engaged in on the premises by any other

person under the tenant’s control. In

addition, the PHA may terminate

assistance if the PHA determines that a

household member is illegally using a

drug or when the PHA determines that

a pattern of illegal use of a drug

interferes with the health, safety, or

right to peaceful enjoyment of the

premises by other residents.

(ii) 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 is engaged in criminal activity

that threatens the health, safety, or right

of peaceful enjoyment of the premises

by other residents or by persons residing

in the immediate vicinity of the

premises.

(ii) 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.

(i) The PHA may terminate assistance

for criminal activity in accordance with

this section if the PHA determines,

based on a preponderance of the

evidence, that a covered person has

engaged in the criminal activity,

regardless of whether the covered

person has been arrested or convicted

for such activity.

(ii) See part 5, subpart J, of this title

for provisions concerning access to

criminal records.

(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’s

abuse or pattern of abuse of alcohol

threatens the health, safety, or right to

peaceful enjoyment of the premises by

other residents.

PART 884—SECTION 8 HOUSING

ASSISTANCE PAYMENTS PROGRAM,

NEW CONSTRUCTION SET-ASIDE FOR

SECTION 515 RURAL RENTAL

HOUSING PROJECTS

16. The authority citation for part 884

continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437f,

3535(d), and 13611–13619.

17. In § 884.216, revise paragraph (b)

to read as follows:

§ 884.216 Termination of tenancy.

* * * * *

(b) Termination of tenancy for

criminal activity by a covered person is

subject to 24 CFR 5.858 and 5.859, and

termination of tenancy for alcohol abuse

by a covered person is subject to 24 CFR

5.860.

PART 891—SUPPORTIVE HOUSING

FOR THE ELDERLY AND PERSONS

WITH DISABILITIES

18. 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.

19. Revise § 891.430 to read as

follows:

§ 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).

20. Revise § 891.630 to read as

follows:

§ 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.

21. Revise § 891.770 to read as

follows:

§ 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).

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28799

PART 960—ADMISSION TO, AND

OCCUPANCY OF, PUBLIC HOUSING

22. The authority citation for part 960

continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437d,

1437n, 1437z–3, and 3535(d).

23. In § 960.102, paragraph (a)(1) is

revised to read as follows:

§ 960.102 Definitions.

(a) Definitions found elsewhere. (1)

General definitions. The following terms

are defined in part 5, subpart A of this

title: 1937 Act, drug, drug-related

criminal activity, federally assisted

housing, guest, household, HUD, MSA,

premises, public housing, public

housing agency (PHA), Section 8,

violent criminal activity.

* * * * *

24. Subpart B of part 960 is revised to

read as follows:

Subpart B—Admission

960.200 Purpose.

960.201 Eligibility.

960.202 Tenant selection policies.

960.203 Standards for PHA tenant selection

criteria.

960.204 Denial of admission for criminal

activity or drug abuse by household

members.

960.205 Drug use by applicants: obtaining

information from drug treatment facility.

960.206 Waiting list: Local preferences in

admission to public housing program.

960.208 Notification to applicants.

§ 960.200 Purpose.

(a) This subpart states HUD eligibility

and selection requirements for

admission to public housing.

(b) See also related HUD regulations

in this title concerning these subjects:

(1) 1937 Act definitions: part 5,

subpart D;

(2) Restrictions on assistance to

noncitizens: part 5, subpart E;

(3) Family income and family

payment: part 5, subpart F;

(4) Public housing agency plans: part

903;

(5) Rent and reexamination: part 960,

subpart C;

(6) Mixed population developments:

part 960, subpart D;

(7) Occupancy by over-income

families or police officers: part 960,

subpart E.

§ 960.201 Eligibility.

(a) Who is eligible? (1) Basic

eligibility. An applicant must meet all

eligibility requirements in order to

receive housing assistance. At a

minimum, the applicant must be a

family, as defined in § 5.403 of this title,

and must be income-eligible, as

described in this section. Such eligible

applicants include single persons.

(2) Low income limit. No family other

than a low income family is eligible for

admission to a PHA’s public housing

program.

(b) Income used for eligibility and

targeting. Family annual income (see

§ 5.609) is used both for determination

of income eligibility under paragraph (a)

and for PHA income targeting under

§ 960.202

(c) Reporting. The PHA must comply

with HUD-prescribed reporting

requirements that will permit HUD to

maintain the data, as determined by

HUD, necessary to monitor compliance

with income eligibility and targeting

requirement.

§ 960.202 Tenant selection policies.

(a) Selection policies, generally. (1)

The PHA shall establish and adopt

written policies for admission of

tenants.

(2) These policies shall provide for

and include the following:

(i) Targeting admissions to extremely

low income families as provided in

paragraph (b) of this section.

(ii) Deconcentration of poverty and

income-mixing in accordance with the

PHA Plan regulations (see 24 CFR part

903).

(iii) Precluding admission of

applicants whose habits and practices

reasonably may be expected to have a

detrimental effect on the residents or the

project environment;

(iv) Objective and reasonable policies

for selection by the PHA among

otherwise eligible applicants, including

requirements for applications and

waiting lists (see 24 CFR 1.4), and for

verification and documentation of

information relevant to acceptance or

rejection of an applicant, including

documentation and verification of

citizenship and eligible immigration

status under 24 CFR part 5; and

(v) Policies of participant transfer

between units, developments, and

programs. For example, a PHA could

adopt a criterion for voluntary transfer

that the tenant had met all obligations

under the current program, including

payment of charges to the PHA.

(b) Targeting admissions to extremely

low income families.

(1) Targeting requirement. (i) Not less

than 40 percent of the families admitted

to a PHA’s public housing program

during the PHA fiscal year from the

PHA waiting list shall be extremely low

income families. This is called the

‘‘basic targeting requirement.’’

(ii) To the extent provided in

paragraph (b)(2) of this section,

admission of extremely low income

families to the PHA’s Section 8 voucher

program during the same PHA fiscal

year is credited against the basic

targeting requirement.

(iii) A PHA must comply with both

the targeting requirement found in this

part and the deconcentration

requirements found in part 903 of this

chapter.

(2) Credit for admissions to PHA

voucher program. (i) If admissions of

extremely low income families to the

PHA’s voucher program during a PHA

fiscal year exceeds the 75 percent

minimum targeting requirement for the

PHA’s voucher program (see 24 CFR

982.201(b)(2)), such excess shall be

credited (subject to the limitations in

paragraph (b)(2)(ii) of this section)

against the PHA’s basic targeting

requirement for the same fiscal year.

(ii) The fiscal year credit for voucher

program admissions that exceed the

minimum voucher program targeting

requirement shall not exceed the lower

of:

(A) Ten percent of public housing

waiting list admissions during the PHA

fiscal year;

(B) Ten percent of waiting list

admission to the PHA’s Section 8

tenant-based assistance program during

the PHA fiscal year; or

(C) The number of qualifying low

income families who commence

occupancy during the fiscal year of PHA

public housing units located in census

tracts with a poverty rate of 30 percent

or more. For this purpose, qualifying

low income family means a low income

family other than an extremely low

income family.

(c) Adoption and availability of tenant

selection policies. These selection

policies shall:

(1) Be duly adopted and

implemented;

(2) Be publicized by posting copies

thereof in each office where

applications are received and by

furnishing copies to applicants or

tenants upon request, free or at their

expense, at the discretion of the PHA;

and

(3) Be consistent with the fair housing

and equal opportunity provisions of

§ 5.105 of this title; and

(4) Be submitted to the HUD field

office upon request from that office.

§ 960.203 Standards for PHA tenant

selection criteria.

(a) The tenant selection criteria to be

established and information to be

considered shall be reasonably related

to individual attributes and behavior of

an applicant and shall not be related to

those which may be imputed to a

particular group or category of persons

28800 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

of which an applicant may be a member.

The PHA may use local preferences, as

provided in § 960.206.

(b) Under the Public Housing

Assessment System (PHAS), PHAs that

have adopted policies, implemented

procedures and can document that they

successfully screen out and deny

admission to certain applicants with

unfavorable criminal histories receive

points. (See 24 CFR 902.43(a)(5).) This

policy takes into account the

importance of screening to public

housing communities and program

integrity, and the demand for assisted

housing by families who will adhere to

lease responsibilities.

(c) In selection of families for

admission to its public housing

program, or to occupy a public housing

development or unit, the PHA is

responsible for screening family

behavior and suitability for tenancy.

The PHA may consider all relevant

information, which may include, but is

not limited to:

(1) An applicant’s past performance in

meeting financial obligations, especially

rent;

(2) A record of disturbance of

neighbors, destruction of property, or

living or housekeeping habits at prior

residences which may adversely affect

the health, safety or welfare of other

tenants; and

(3) A history of criminal activity

involving crimes of physical violence to

persons or property and other criminal

acts which would adversely affect the

health, safety or welfare of other

tenants. (See § 960.204.) With respect to

criminal activity described in § 960.204:

(i) The PHA may require an applicant

to exclude a household member in order

to be admitted to the housing program

where that household member has

participated in or been culpable for

actions described in § 960.204 that

warrants denial.

(ii) The PHA may, where a statute

requires that the PHA prohibit

admission for a prescribed period of

time after some disqualifying behavior

or event, choose to continue that

prohibition for a longer period of time.

(d) In the event of the receipt of

unfavorable information with respect to

an applicant, consideration shall be

given to the time, nature, and extent of

the applicant’s conduct (including the

seriousness of the offense).

(1) In a manner consistent with the

PHA’s policies, procedures and

practices referenced in paragraph (b) of

this section, consideration may be given

to factors which might indicate a

reasonable probability of favorable

future conduct. For example:

(i) Evidence of rehabilitation; and

(ii) Evidence of the applicant family’s

participation in or willingness to

participate in social service or other

appropriate counseling service programs

and the availability of such programs;

(2) Consideration of rehabilitation. (i)

In determining whether to deny

admission 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 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 (42 U.S.C. 13661). For this

purpose, the PHA may require the

applicant to submit evidence of the

household member’s current

participation in, or successful

completion of, a supervised drug or

alcohol rehabilitation program or

evidence of otherwise having been

rehabilitated successfully.

(ii) If rehabilitation is not an element

of the eligibility determination (see

§ 960.204(a)(1)), the PHA may choose

not to consider whether the person has

been rehabilitated.

§ 960.204 Denial of admission for criminal

activity or drug abuse by household

members.

(a) Required denial of admission. (1)

Persons evicted for drug-related

criminal activity. The PHA standards

must prohibit admission of an applicant

to the PHA’s public housing program for

three years from the date of the eviction

if any household member has been

evicted from federally assisted housing

for drug-related criminal activity.

However, the PHA may admit the

household if the PHA determines:

(i) 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) The circumstances leading to the

eviction no longer exist (for example,

the criminal household member has

died or is imprisoned).

(2) Persons engaging in illegal use of

a drug. 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 illegal use of a drug (For

purposes of this section, a household

member is ‘‘currently engaged in’’ the

criminal activity if the person has

engaged in the behavior recently enough

to justify a reasonable belief that the

behavior is current); or

(ii) The PHA determines that it has

reasonable cause to believe that a

household member’s illegal use or

pattern of illegal use of a drug may

threaten the health, safety, or right to

peaceful enjoyment of the premises by

other residents.

(3) Persons convicted of

methamphetamine production. 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.

(4) Persons subject to sex offender

registration requirement. 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 the

screening of applicants, the PHA must

perform necessary criminal history

background checks in the State where

the housing is located and in other

States where household members are

known to have resided. (See part 5,

subpart J of this title for provisions

concerning access to sex offender

registration records.)

(b) Persons that abuse or show a

pattern of abuse of alcohol. 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 a

household member’s abuse or pattern of

abuse of alcohol may threaten the

health, safety, or right to peaceful

enjoyment of the premises by other

residents.

(c) Use of criminal records. Before a

PHA denies admission to the PHAs

public housing program on the basis of

a criminal record, the PHA must notify

the household of the proposed action to

be based on the information and must

provide the subject of the record and the

applicant with a copy of the criminal

record and an opportunity to dispute

the accuracy and relevance of that

record. (See part 5, subpart J of this title

for provisions concerning access to

criminal records.)

(d) Cost of obtaining criminal record.

The PHA may not pass along to the

applicant the costs of a criminal records

check.

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28801

§ 960.205 Drug use by applicants:

obtaining information from drug treatment

facility.

(a) Purpose. This section addresses a

PHA’s authority to request and obtain

information from drug abuse treatment

facilities concerning applicants. This

section does not apply to information

requested or obtained from drug abuse

treatment facilities other than under the

authority of section 6(t).

(b) Additional terms used in this

section are as follows:

(1) Currently engaging in illegal use of

a drug. Illegal use of a drug occurred

recently enough to justify a reasonable

belief that there is continuing illegal

drug use by a household member.

(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 each applicant to

submit for all household members who

are at least 18 years of age, and for each

family head or spouse regardless of age,

one or more consent forms signed by

such household member that:

(i) Requests any drug abuse treatment

facility to inform the PHA only whether

the drug abuse treatment facility has

reasonable cause to believe that the

household member is currently

engaging in illegal drug use;

(ii) Complies with the form of written

consent required by 42 CFR 2.31; and

(iii) Authorizes the PHA to receive

such information from the drug abuse

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 § 960.203.

(See the Public Health Service Act, 42

U.S.C. 290dd–2, and implementing

regulations at 42 CFR part 2, with

respect to responsibilities of the drug

abuse treatment facility.)

(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

§ 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) 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).

(4) 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.

(5) A drug abuse treatment facility

may charge the PHA a reasonable fee for

information provided under this

section. The PHA may not pass along to

the applicant or tenant the costs of

obtaining this information.

(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,

obtaining a signed consent form from

the proposed household members:

(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)(1) 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

criminal activity that may be a basis for

denial of admission under § 960.205; 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.

(4) The policy adopted by the PHA

must be included in the PHA

administrative plan and the PHA plan.

(f) Records management and

confidentiality. 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:

(1) Is maintained confidentially in

accordance with section 543 of the

Public Health Service Act (12 U.S.C.

290dd–2);

(2) Is not misused or improperly

disseminated; and

(3) Is destroyed, as applicable:

(i) Not later than 5 business days after

the PHA makes a final decision to admit

the person as a household member

under the PHA’s public housing

program; or

(ii) 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 without the filing of a civil

action or until final disposition of any

such litigation.

§ 960.206 Waiting list: Local preferences in

admission to public housing program.

(a) Establishment of PHA local

preferences. (1) The PHA may adopt a

system of local preferences for selection

of families admitted to the PHA’s public

housing program. The PHA system of

selection preferences must be based on

local housing needs and priorities as

determined by the PHA. In determining

such needs and priorities, the PHA shall

use generally accepted data sources.

Such sources include public comment

on the PHA plan (as received pursuant

to § 903.17 of this chapter), and on the

consolidated plan for the relevant

jurisdiction (as received pursuant to

part 91 of this title).

(2) The PHA may limit the number of

applicants that qualify for any local

preference.

(3) PHA adoption and implementation

of local preferences is subject to HUD

requirements concerning incometargeting (§ 960.202(b)), deconcentration

and income-mixing (§ 903.7), and

selection preferences for developments

designated exclusively for elderly or

disabled families or for mixed

population developments (§ 960.407).

(4) The PHA must inform all

applicants about available preferences

and must give applicants an opportunity

to show that they qualify for available

preferences.

(b) Particular local preferences—(1)

Residency requirements or preferences.

(i) Residency requirements are

prohibited. Although a PHA is not

prohibited from adopting a residency

preference, the PHA may only adopt or

28802 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

implement residency preferences in

accordance with non-discrimination

and equal opportunity requirements

listed at § 5.105(a) of this title.

(ii) A residency preference is a

preference for admission of persons who

reside in a specified geographic area

(‘‘residency preference area’’). A county

or municipality may be used as a

residency preference area. An area

smaller than a county or municipality

may not be used as a residency

preference area.

(iii) Any PHA residency preferences

must be included in the statement of

PHA policies that govern eligibility,

selection and admission to the program,

which is included in the PHA annual

plan (or supporting documents)

pursuant to part 903 of this chapter.

Such policies must specify that use of

a residency preference will not have the

purpose or effect of delaying or

otherwise denying admission to the

program based on the race, color, ethnic

origin, gender, religion, disability, or age

of any member of an applicant family.

(iv) A residency preference must not

be based on how long an applicant has

resided or worked in a residency

preference area.

(v) Applicants who are working or

who have been notified that they are

hired to work in a residency preference

area must be treated as residents of the

residency preference area. The PHA

may treat graduates of, or active

participants in, education and training

programs in a residency preference area

as residents of the residency preference

area if the education or training program

is designed to prepare individuals for

the job market.

(2) Preference for working families.

The PHA may adopt a preference for

admission of working families (families

where the head, spouse, or sole member,

is employed). However, an applicant

must be given the benefit of the working

family preference if the head and

spouse, or sole member is age 62 or

older, or is a person with disabilities.

(3) Preference for person with

disabilities. The PHA may adopt a

preference for admission of families that

include a person with disabilities.

However, the PHA may not adopt a

preference for persons with a specific

disability.

(4) Preference for victims of domestic

violence. The PHA should consider

whether to adopt a local preference for

admission of families that include

victims of domestic violence.

(5) Preference for single persons who

are elderly, displaced, homeless or a

person with disabilities. The PHA may

adopt a preference for admission of

single persons who are age 62 or older,

displaced, homeless, or persons with

disabilities over other single persons.

(c) Selection for particular unit. In

selecting a family to occupy a particular

unit, the PHA may match characteristics

of the family with the type of unit

available, for example, number of

bedrooms. In selection of families to

occupy units with special accessibility

features for persons with disabilities,

the PHA must first offer such units to

families which include persons with

disabilities who require such

accessibility features (see §§ 8.27 and

100.202 of this title).

(d) Housing assistance limitation for

single persons. A single person who is

not an elderly or displaced person, or a

person with disabilities, or the

remaining member of a resident family

may not be provided a housing unit

with two or more bedrooms.

(e) Selection method. (1) The PHA

must use the following to select among

applicants on the waiting list with the

same priority for admission:

(i) Date and time of application; or

(ii) A drawing or other random choice

technique.

(2) The method for selecting

applicants must leave a clear audit trail

that can be used to verify that each

applicant has been selected in

accordance with the method specified

in the PHA plan.

§ 960.208 Notification to applicants.

(a) The PHA must promptly notify

any applicant determined to be

ineligible for admission to a project of

the basis for such determination, and

must provide the applicant upon

request, within a reasonable time after

the determination is made, with an

opportunity for an informal hearing on

such determination.

(b) When a determination has been

made that an applicant is eligible and

satisfies all requirements for admission,

including the tenant selection criteria,

the applicant must be notified of the

approximate date of occupancy insofar

as that date can be reasonably

determined.

PART 966—PUBLIC HOUSING LEASE

AND GRIEVANCE PROCEDURE

25. The authority citation for part 966

is revised to read as follows:

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

26. The heading for part 966 is revised

to read as set forth above.

27. Revise § 966.1 to read as follows:

§ 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.

28. Add a new § 966.2 to read as

follows:

§ 966.2 Definitions.

The following terms are defined in

part 5, subpart A of this title: 1937 Act,

covered person, drug, drug-related

criminal activity, federally assisted

housing, guest, household, HUD, other

person under the tenant’s control,

public housing, premises, public

housing agency, Section 8, violent

criminal activity.

29. In § 966.4, revise paragraphs

(d)(1), (f)(12), (1)(2), (1)(3)(i), and (1)(5)

to read as follows:

§ 966.4 Lease requirements.

* * * * *

(d) Tenant’s right to use and

occupancy. (1) The lease shall provide

that the tenant shall have the right to

exclusive use and occupancy of the

leased unit by the members of the

household authorized to reside in the

unit in accordance with the lease,

including reasonable accommodation of

their guests. The term guest is defined

in 24 CFR 5.100.

* * * * *

(f) Tenant’s obligations. The lease

shall provide that the tenant shall be

obligated: * * *

(12) (i) To assure that no tenant,

member of the tenant’s household, or

guest 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 other person

under the tenant’s control 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 the premises;

(iii) 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.

* * * * *

(1) * * *

(2) Grounds for termination of

tenancy. The PHA may terminate the

tenancy only for:

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28803

(i) Serious or repeated violation of

material terms of the lease, such as the

following:

(A) Failure to make payments due

under the lease;

(B) Failure to fulfill household

obligations, as described in paragraph (f)

of this section;

(ii) Other good cause. Other good

cause includes, but is not limited to, the

following:

(A) Criminal activity or alcohol abuse

as provided in paragraph (1)(5) of this

section;

(B) Discovery after admission of facts

that made the tenant ineligible;

(C) Discovery of material false

statements or fraud by the tenant in

connection with an application for

assistance or with reexamination of

income;

(D) Failure of a family member to

comply with service requirement

provisions of part 960, subpart F, of this

chapter—as grounds only for nonrenewal of the lease and termination of

tenancy at the end of the twelve-month

lease term; and

(E) Failure to accept the PHA’s offer

of a lease revision to an existing lease:

that is on a form adopted by the PHA

in accordance with § 966.3; with written

notice of the offer of the revision at least

60 calendar days before the lease

revision is scheduled to take effect; and

with the offer specifying a reasonable

time limit within that period for

acceptance by the family.

(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) PHA termination of tenancy for

criminal activity or alcohol abuse. 

(i) Evicting drug criminals. (A)

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.

(B) Drug crime on or off the premises.

The lease must provide that drug-related

criminal activity engaged in on or off

the premises by any tenant, member of

the tenant’s household or guest, and any

such activity engaged in on the premises

by any other person under the tenant’s

control, is grounds for the PHA to

terminate tenancy. In addition, the lease

must provide that a PHA may evict a

family when the PHA determines that a

household member is illegally using a

drug or when the PHA determines that

a pattern of illegal use of a drug

interferes with the health, safety, or

right to peaceful enjoyment of the

premises by other residents.

(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, safety, or right to peaceful

enjoyment of the premises by other

residents (including PHA management

staff residing on the premises) or

threatens the health, safety, or right to

peaceful enjoyment of their residences

by persons residing in the immediate

vicinity of the premises is grounds for

termination of tenancy.

(B) Fugitive felon or parole violator.

The PHA may terminate the tenancy if

a tenant is 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 violating a condition

of probation or parole imposed under

Federal or State law.

(iii) Eviction for criminal activity. (A)

Evidence. The PHA may evict the tenant

by judicial action for criminal activity in

accordance with this section if the PHA

determines that the covered person has

engaged in the criminal activity,

regardless of whether the covered

person has been arrested or convicted

for such activity and without satisfying

the standard of proof used for a criminal

conviction.

(B) Notice to Post Office. When a PHA

evicts an individual or family for

criminal activity, the PHA must notify

the local post office serving the dwelling

unit that the individual or family is no

longer residing in the unit.

(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 notify the

household of the proposed action to be

based on the information and must

provide the subject of the record and the

tenant with a copy of the criminal

record before a PHA grievance hearing

or court trial concerning the termination

of tenancy or eviction. The tenant must

be given an opportunity to dispute the

accuracy and relevance of that record in

the grievance hearing or court trial.

(v) Cost of obtaining criminal record.

The PHA may not pass along to the

tenant the costs of a criminal records

check.

(vi) Evicting alcohol abusers. The

PHA must establish standards that allow

termination of tenancy if the PHA

determines that a household member

has:

(A) Engaged in abuse or pattern of

abuse of alcohol that threatens the

health, safety, or right to peaceful

enjoyment of the premises by other

residents; or

(B) Furnished false or misleading

information concerning illegal drug use,

alcohol abuse, or rehabilitation of illegal

drug users or alcohol abusers.

(vii) PHA action, generally. (A)

Assessment under PHAS. Under the

Public Housing Assessment System

(PHAS), PHAs that have adopted

policies, implemented procedures and

can document that they appropriately

evict any public housing residents who

engage in certain activity detrimental to

the public housing community receive

points. (See 24 CFR 902.43(a)(5).) This

policy takes into account the

importance of eviction of such residents

to public housing communities and

program integrity, and the demand for

assisted housing by families who will

adhere to lease responsibilities.

(B) Consideration of circumstances. In

a manner consistent with such policies,

procedures and practices, the PHA may

consider all circumstances relevant to a

particular case such as the seriousness

of the offending action, the extent of

participation by the leaseholder in the

offending action, the effects that the

eviction would have on family members

not involved in the offending activity

and the extent to which the leaseholder

has shown personal responsibility and

has taken all reasonable steps to prevent

or mitigate the offending action.

(C) Exclusion of culpable household

member. The PHA may require a tenant

to exclude a household member in order

to continue to reside in the assisted

unit, where that household member has

participated in or been culpable for

action or failure to act that warrants

termination.

(D) 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

28804 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

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 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 (42

U.S.C. 13662). For this purpose, the

PHA may require the tenant to submit

evidence of the household member’s

current participation in, or successful

completion of, a supervised drug or

alcohol rehabilitation program or

evidence of otherwise having been

rehabilitated successfully.

(E) Length of period of mandatory

prohibition on admission. If a statute

requires that the PHA prohibit

admission of persons for a prescribed

period of time after some disqualifying

behavior or event, the PHA may apply

that prohibition for a longer period of

time.

(F) Nondiscrimination limitation. The

PHA’s eviction actions must be

consistent with fair housing and equal

opportunity provisions of § 5.105 of this

title.

* * * * *

30. In § 966.51, revise paragraphs

(a)(2)(i)(A) and (a)(2)(i)(B) and add

paragraph (a)(2)(i)(C) to read as follows:

§ 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 off 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

31. The authority citation for part 982

continues to read as follows:

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

32. Amend § 982.4 as follows:

a. Remove the definitions of drugrelated criminal activity, drugtrafficking, and violent criminal activity

from paragraph (b);

b. Revise paragraph (a)(2) to read as

follows:

§ 982.4 Definitions.

(a) * * *

(2) Terms found elsewhere. The

following terms are defined in part 5,

subpart A of this title: 1937 Act, covered

person, drug, drug-related criminal

activity, federally assisted housing,

guest, household, HUD, MSA, other

person under the tenant’s control,

public housing, Section 8, and violent

criminal activity.

* * * * *

33. In § 982.54, add a new paragraph

(d)(4)(iii) to read as follows:

§ 982.54 Administrative plan.

* * * * *

(d) * * *

(4) * * *

(iii) Standards for denying admission

or terminating assistance based on

criminal activity or alcohol abuse in

accordance with § 982.553;

* * * * *

34. In § 982.310, revise paragraph (c)

and add a new paragraph (h) to read as

follows:

§ 982.310 Owner termination of tenancy.

* * * * *

(c) Criminal activity. (1) Evicting drug

criminals due to drug crime on or near

the premises. The lease must provide

that drug-related criminal activity

engaged in, on or near the premises by

any tenant, household member, or guest,

or such activity engaged in on the

premises by any other person under the

tenant’s control, is grounds for the

owner to terminate tenancy. In addition,

the lease must provide that the owner

may evict a family when the owner

determines that a household member is

illegally using a drug or when the owner

determines that a pattern of illegal use

of a drug interferes with the health,

safety, or right to peaceful enjoyment of

the premises by other residents.

(2) Evicting other criminals. (i) Threat

to other residents. The lease must

provide that the owner may terminate

tenancy for any of the following types

of criminal activity by a covered person:

(A) Any criminal activity that

threatens the health, safety, or 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, or 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 by a tenant,

household member, or guest, or any

such activity on the premises by any

other person under the tenant’s control.

(ii) Fugitive felon or parole violator.

The lease must provide that the owner

may terminate the tenancy if a tenant 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 and evict

by judicial action a family for criminal

activity by a covered person in

accordance with this section if the

owner determines that the covered

person has engaged in the criminal

activity, regardless of whether the

covered person has been arrested or

convicted for such activity and without

satisfying the standard of proof used for

a criminal conviction. (See part 5,

subpart J, of this title for provisions

concerning access to criminal records.)

* * * * *

(h) Termination of tenancy

decisions.—(1) General. If the law and

regulation permit the owner to take an

action but do not require action to be

taken, the owner may take or not take

the action in accordance with the

owner’s standards for eviction. The

owner may consider all of the

circumstances relevant to a particular

eviction case, such as:

(i) The seriousness of the offending

action;

(ii) The effect on the community of

denial or termination or the failure of

the owner to take such action;

(iii) The extent of participation by the

leaseholder in the offending action;

(iv) The effect of denial of admission

or termination of tenancy on household

members not involved in the offending

activity;

(v) The demand for assisted housing

by families who will adhere to lease

responsibilities;

(vi) The extent to which the

leaseholder has shown personal

responsibility and taken all reasonable

steps to prevent or mitigate the

offending action;

(vii) The effect of the owner’s action

on the integrity of the program.

(2) Exclusion of culpable household

member. The owner may require a

tenant to exclude a household member

in order to continue to reside in the

assisted unit, where that household

member has participated in or been

culpable for action or failure to act that

warrants termination.

(3) Consideration of rehabilitation. In

determining whether to terminate

Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations 28805

tenancy for illegal use of drugs or

alcohol abuse by a household member

who is no longer engaged in such

behavior, 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 (42

U.S.C. 13661). For this purpose, the

owner may require the tenant to submit

evidence of the household member’s

current participation in, or successful

completion of, a supervised drug or

alcohol rehabilitation program or

evidence of otherwise having been

rehabilitated successfully.

(4) Nondiscrimination limitation. The

owner’s termination of assistance

actions must be consistent with fair

housing and equal opportunity

provisions of § 5.105 of this title.

35. Amend § 982.551 by redesignating

paragraph (m) as paragraph (n); adding

a new paragraph (m); and revising

paragraph (l) to read as follows:

§ 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 § 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.

* * * * *

36. Amend § 982.552 by revising

paragraphs (b)(1), (c)(1)(iv) and (c)(2),

and by adding new paragraph (c)(1)(xi),

to read as follows:

§ 982.552 PHA denial or termination of

assistance for family.

* * * * *

(b) Requirement to deny admission or

terminate assistance. (1) For provisions

on denial of admission and termination

of assistance for illegal drug use, other

criminal activity, and alcohol abuse that

would threaten other residents, see

§ 982.553.

* * * * *

(c) * * *

(1) * * *

(iv) If any member of the family has

committed fraud, bribery, or any other

corrupt or criminal act in connection

with any Federal housing program (see

also § 982.553(a)(1));

* * * * *

(xi) If the family has been engaged in

criminal activity or alcohol abuse as

described in § 982.553.

(2) Consideration of circumstances. In

determining whether to deny or

terminate assistance because of action or

failure to act by members of the family:

(i) The PHA may consider all relevant

circumstances such as the seriousness of

the case, the extent of participation or

culpability of individual family

members, mitigating circumstances

related to the disability of a family

member, and the effects of denial or

termination of assistance on other

family members who were not involved

in the action or failure.

(ii) The PHA may impose, as a

condition of continued assistance for

other family members, a requirement

that other 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.

(iii) In determining whether to deny

admission or terminate assistance for

illegal use of drugs or alcohol abuse by

a household member who is no longer

engaged in such behavior, the PHA

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 (42 U.S.C. 13661). For this

purpose, the PHA may require the

applicant or tenant to submit evidence

of the household member’s current

participation in, or successful

completion of, a supervised drug or

alcohol rehabilitation program or

evidence of otherwise having been

rehabilitated successfully.

(iv) If the family includes a person

with disabilities, the PHA decision

concerning such action is subject to

consideration of reasonable

accommodation in accordance with part

8 of this title.

(v) Nondiscrimination limitation. The

PHA’s admission and eviction actions

must be consistent with fair housing

and equal opportunity provisions of

§ 5.105 of this title.

* * * * *

37. Revise § 982.553 to read as

follows:

§ 982.553 Denial of admission and

termination of assistance for criminals and

alcohol abusers.

(a) Denial of admission. (1)

Prohibiting admission of drug criminals.

(i) The PHA must prohibit admission

to the program of an applicant for three

years from the date of eviction if a

household member has been evicted

from federally assisted housing for drugrelated criminal activity. However, 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).

(ii) The PHA must establish standards

that prohibit admission if:

(A) The PHA determines that any

household member is currently

engaging in illegal use of a drug;

(B) The PHA determines that it has

reasonable cause to believe that a

household member’s illegal drug use or

a pattern of illegal drug use may

threaten the health, safety, or right to

peaceful enjoyment of the premises by

other residents; or

(C) 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) Mandatory prohibition.

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 this 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 in the

State where the housing is located and

in other States where the household

members are known to have resided.

(ii) Permissive prohibitions. (A) 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 during a reasonable time before the

admission:

(1) Drug-related criminal activity;

(2) Violent criminal activity;

(3) Other criminal activity which may

threaten the health, safety, or right to

peaceful enjoyment of the premises by

other residents or persons residing in

the immediate vicinity; or

(4) Other criminal activity which may

threaten the health or safety of the

owner, property management staff, or

persons performing a contract

28806 Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations

administration function or

responsibility on behalf of the PHA

(including a PHA employee or a PHA

contractor, subcontractor or agent).

(B) The PHA may establish a period

before the admission decision during

which an applicant must not to have

engaged in the activities specified in

paragraph (a)(2)(i) of this section

(‘‘reasonable time’’).

(C) If the PHA previously denied

admission to an applicant because a

member of the household engaged in

criminal activity, the PHA may

reconsider the applicant if the PHA has

sufficient evidence that the members of

the household are not currently engaged

in, and have not engaged in, such

criminal activity during a reasonable

period, as determined by the PHA,

before the admission decision.

(1) The PHA would have ‘‘sufficient

evidence’’ if the household member

submitted a certification that she or he

is not currently engaged in and has not

engaged in such criminal activity during

the specified period and provided

supporting information from such

sources as a probation officer, a

landlord, neighbors, social service

agency workers and criminal records,

which the PHA verified.

(2) For purposes of this section, a

household member is ‘‘currently

engaged in’’ criminal activity if the

person has engaged in the behavior

recently enough to justify a reasonable

belief that the behavior is current.

(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 a

household member’s abuse or pattern of

abuse of alcohol may threaten the

health, safety, or 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:

(A) Any household member is

currently engaged in any illegal use of

a drug; or

(B) A pattern of illegal use of a drug

by any household member interferes

with the health, safety, or right to

peaceful enjoyment of the premises by

other residents.

(ii) 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.

(iii) The PHA must establish

standards that allow the PHA to

terminate assistance under the program

for a family if the PHA determines that

any family member has violated the

family’s obligation under § 982.551 not

to engage in any drug-related criminal

activity.

(2) Terminating assistance for other

criminals. The PHA must establish

standards that allow the PHA to

terminate assistance under the program

for a family if the PHA determines that

any household member has violated the

family’s obligation under § 982.551 not

to engage in violent criminal activity.

(3) 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’s

abuse or pattern of abuse of alcohol may

threaten the health, safety, or right to

peaceful enjoyment of the premises by

other residents.

(c) Evidence of criminal activity. The

PHA may terminate assistance for

criminal activity by a household

member as authorized in this section if

the PHA determines, based on a

preponderance of the evidence, that the

household member has engaged in the

activity, regardless of whether the

household member has been arrested or

convicted for such activity.

(d) Use of criminal record.—(1)

Denial. If a PHA proposes to deny

admission for criminal activity as

shown by a criminal record, the PHA

must provide the subject of the record

and the applicant with a copy of the

criminal record. The PHA must give the

family an opportunity to dispute the

accuracy and relevance of that record, in

the informal review process in

accordance with § 982.554. (See part 5,

subpart J for provision concerning

access to criminal records.)

(2) Termination of assistance. If a

PHA proposes to terminate assistance

for criminal activity as shown by a

criminal record, the PHA must notify

the household of the proposed action to

be based on the information and must

provide the subject of the record and the

tenant with a copy of the criminal

record. The PHA must give the family

an opportunity to dispute the accuracy

and relevance of that record in

accordance with § 982.555.

(3) Cost of obtaining criminal record.

The PHA may not pass along to the

tenant the costs of a criminal records

check.

Dated: April 25, 2001.

Mel Martinez,

Secretary.

[FR Doc. 01–12840 Filed 5–23–01; 8:45 am]

BILLING CODE 4210–33–P