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PHA Discretion in Treatment of Over-Income Families
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[Federal Register: August 1, 2003 (Volume 68, Number 148)]
[Proposed Rules]
[Page 45733-45735]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au03-28]
[[Page 45733]]
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Part VI
Department of Housing and Urban Development
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24 CFR Part 960
PHA Discretion in Treatment of Over-Income Families; Proposed Rule
[[Page 45734]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 960
[Docket No. FR-4824-P-01]
RIN 2577-AC42
PHA Discretion in Treatment of Over-Income Families
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would give public housing agencies (PHAs)
the discretion, in accordance with federal law and regulations, to
evict public housing tenants who are over the income limit for
eligibility to participate in public housing programs. PHAs may decide
that such families should be able to find other housing and that public
housing units should be made available for families with greater
housing need.
DATES: Comments Due Date: September 30, 2003.
ADDRESSES: Interested persons are invited to submit written comments
regarding this rule to the Regulations Division, Room 10276, Office of
General Counsel, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410-0500. Comments should refer
to the above docket number and title. A copy of each comment submitted
will be available for public inspection and copying between 8 a.m. and
5 p.m., weekdays, at the above address. Facsimile (FAX) comments will
not be accepted.
FOR FURTHER INFORMATION CONTACT: Pat Arnaudo, Office of Public Housing
Occupancy and Management, Department of Housing and Urban Development,
Room 4116, 451 Seventh Street, SW., Washington, DC 20410-5000;
telephone (202) 708-0744 (this is not a toll-free number). Hearing or
speech impaired individuals may access this number via TTY by calling
the toll-free Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
This rule proposes to amend 24 CFR 960.261, ``Restrictions on
evictions of families based upon income,'' which limits the authority
of PHAs to evict families residing in public housing based on an
increase in income unless: (1) The PHA has determined that there is
other decent, safe, and sanitary housing available to the tenant at a
rent not exceeding the then-current tenant rent; or (2) the PHA is
required to evict the family by local law. Through this rule, HUD
proposes that a PHA have the discretion to evict a family that is over
the eligible income limit. HUD believes that public housing should be
available to low-income families and that it is inappropriate to limit
the ability of a PHA to move over-income families out of public housing
to make room for low-income families on waiting lists.
The restriction on eviction provision is a regulatory requirement,
not a statutory one. The CFR section has undergone some revision since
its original promulgation; it was promulgated in its current form on
March 29, 2000. (See 65 FR 16729.)
There are statutory provisions in the U.S. Housing Act of 1937, 42
U.S.C. 1437 et seq. (the 1937 Act) and policy considerations that
affect the ability of PHAs to evict residents based on income changes
in some specifically defined cases. These considerations relate to the
two-year earned income disallowance in section 3(d) of the Act, 42
U.S.C. 1437a(d), and the Family Self-Sufficiency program under section
23 of the Act, 42 U.S.C. 1437u.
In order to create an incentive for public housing residents to
find employment, the 1937 Act provides for a moratorium on increases in
rent because of employment, under specified statutory criteria that
ensure that over-income families remain in place for valid reasons.
Section 3(d) of the 1937 Act (42 U.S.C. 1437a(d)), provides that for
certain families who have a member who succeeds in becoming employed,
rent is not increased at all for the 12-month period following the
commencement of employment and is increased only in a 50 percent
increment for the subsequent 12-month period. This temporary
disallowance only applies to families who have a member: (1) Whose
income increases as a result of employment if the member was previously
unemployed for one or more years; (2) whose income increases because of
participation in a local self-sufficiency program; or (3) who is or was
within the previous 6 months assisted under a state program for
temporary assistance to needy families (TANF). (See 42 U.S.C.
1437a(d).) This statute not only implies that such families should not
be considered over-income until the period of rent moratorium expires,
it is part of an important HUD policy to create incentives for self-
sufficiency and employment that will ultimately enable families to
leave public housing. HUD does not wish to undermine this policy, so
this rule would exempt families eligible for the earned income
disregard from those who may be immediately evicted when over income.
Similarly, the Family Self-Sufficiency (FSS) program under 42
U.S.C. 1437u, provides that families enter into contracts of
participation with the PHA under which the head of the household is
required to seek suitable employment during the term of the contract.
The FSS program is an important policy initiative of the department to
coordinate resources to enable public housing residents to achieve
economic self-sufficiency. Allowing participants to be evicted during
the term of the contract because they found employment, which is the
object of the self-sufficiency contract, would undermine the program.
Therefore, this proposed rule would exempt such families from eviction
so long as they have a valid contract of participation in an FSS
program under the statute and HUD's regulations.
II. This Proposed Rule
HUD believes that, except for the statutory special-case exemptions
noted above in Section I of this preamble, PHAs should be free to make
local decisions to serve low-income families. Those with incomes over
80 percent of the median--the upper limit for public housing admissions
eligibility--should be able to find housing in the private market, and
the PHA will therefore be able to focus its efforts on families with
lower incomes. In the past, 24 CFR 960.261 and its predecessor sections
have unduly limited the PHA's ability to respond to over-income
families who choose to remain in public housing. HUD believes it is
better policy to grant PHAs the ability to target scarce public
resources to those most in need for housing. HUD, under its general
regulatory authority provided in 42 U.S.C. 3535(d), which states that
the Secretary may ``make such regulations as may be necessary to carry
out his functions, powers, and duties,'' is proposing to implement this
policy by amending 24 CFR 960.261.
III. Findings and Certifications
Environmental Impact
This rule concerns a statutorily required and/or discretionary
establishment and review of income limits and exclusions with regard to
eligibility for or calculation of HUD housing assistance or rental
assistance. As such, this rule is categorically excluded from the
provisions of the National Environmental Policy Act, 42 U.S.C. 4332,
under 24 CFR 50.19(c)(6) of HUD's regulations.
[[Page 45735]]
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this rule and in so doing
certifies that this rule would not have a significant economic impact
on a substantial number of small entities.
This rule is concerned only with granting PHAs the discretion to
evict over-income families. It does not mandate that any PHA take such
action. Furthermore, the rule preserves the ability that small PHAs
with fewer than 250 units have to admit over-income families in cases
where there is no demand for a unit by an eligible family, thus
preventing such small PHAs from having to support vacant units.
Therefore, this rule would not have a significant economic impact on a
substantial number of small entities.
Although HUD has determined that this proposed rule would not have
a significant economic impact on a substantial number of small
entities, HUD welcomes comments regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in this preamble.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments and the private sector. This proposed rule does not
impose any federal mandates on any state, local, or tribal governments
or the private sector within the meaning of the UMRA.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits, to the
extent practicable and permitted by law, an agency from promulgating a
regulation that has federalism implications and either imposes
substantial direct compliance costs on state and local governments and
is not required by statute, or preempts state law, unless the relevant
requirements of section 6 of the Executive Order are met. This rule
does not have federalism implications and does not impose substantial
direct compliance costs on state and local governments or preempt state
law within the meaning of the Executive Order.
Regulatory Planning and Review
The Office of Management and Budget (OMB) reviewed this proposed
rule under Executive Order 12866 (entitled ``Regulatory Planning and
Review''). OMB determined that this proposed rule is a ``significant
regulatory action,'' as defined in section 3(f) of the Order (although
not economically significant, as provided in section 3(f)(1) of the
Order). Any changes made to the proposed rule subsequent to its
submission to OMB are identified in the docket file, which is available
for public inspection in the office of the Rules Docket Clerk, Room
10276, U.S. Department of Housing and Urban Development, 451 Seventh
Street, SW., Washington, DC, 20410-0500.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance number applicable to the
program affected by this rule is 14.850.
List of Subjects in 24 CFR Part 960
Aged, Grant programs--housing and community development,
Individuals with disabilities, Pets, Public housing.
For the reasons stated in the preamble, HUD proposes to amend 24
CFR part 960 as follows:
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
1. 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).
* * * * *
Subpart C--Rent and Reexamination
2. Revise 24 CFR 960.261 to read as follows:
Sec. 960.261 Restriction on eviction of families based on income.
(a) PHAs may evict or terminate the tenancies of families who are
over income, subject to paragraphs (b) and (c) of this section.
(b) Unless it is required to do so by local law, a PHA may not
evict or terminate the tenancy of a family solely because the family is
over income, if the family is entitled to the disallowance of earned
income as provided at 42 U.S.C. 1437a(d), so long as that family or a
member of that family meets the requirements of that section.
(c) Unless it is required to do so by local law, a PHA may not
evict or terminate the tenancy of a family solely because the family is
over income, if the family has a contract for participation in an FSS
program under part 984 of this title.
Dated: July 2, 2003.
Michael M. Liu,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 03-19623 Filed 7-31-03; 8:45 am]
BILLING CODE 4210-33-P