Final Rule

Thursday,
May 24, 2001

Part II

Department of
Housing and Urban
Development
24 CFR Parts 5 et al.
Screening and Eviction for Drug Abuse
and Other Criminal Activity; Final Rule

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

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
Office of the Secretary, HUD.
Final rule.

AGENCY:
ACTION:

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.

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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,

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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

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

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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

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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

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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.

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.

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.

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.

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

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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

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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

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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).

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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 drug-

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related 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

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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

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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

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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

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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

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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

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28781

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

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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

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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

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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).

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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

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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

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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

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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)

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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.

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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.

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Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations
Impact on Small Entities

24 CFR Part 882

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.

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

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

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 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.
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

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.

16:46 May 23, 2001

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

24 CFR Part 982

24 CFR Part 5

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24 CFR Part 884

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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

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28791

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)

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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?

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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

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

(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.

§ 5.853

§ 5.855 When am I specifically authorized
to prohibit admission of individuals who
have engaged in criminal activity?

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

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Jkt 194001

(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.

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

(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

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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.

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

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(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

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28795

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

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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.

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(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).

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Federal Register / Vol. 66, No. 101 / Thursday, May 24, 2001 / Rules and Regulations
§ 880.607 Termination of tenancy and
modification of lease.

5. Add a new § 200.37 to read as
follows:

*

*
*
*
*
(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).
*
*
*
*
*

§ 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:

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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
tenancy.

Lease and termination of

(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

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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

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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

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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.

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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).

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

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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

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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

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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

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(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

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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.

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§ 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

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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

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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

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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,

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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.

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(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:

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(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

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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

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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

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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) * * *

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(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.

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(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

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

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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.

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28805

(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

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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

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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

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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

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