81 FR 5677 - Strengthening Oversight of Over-Income Tenancy in Public Housing; Advance Notice of Proposed Rulemaking

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Federal Register Volume 81, Issue 22 (February 3, 2016)

Through this notice, HUD announces that it is considering rulemaking to ensure that individuals and families residing in HUD public housing in fact continue to need housing assistance from HUD after admission. HUD's consideration of rulemaking is prompted by a report recently issued by HUD's Office of Inspector General (OIG). The report found, through comparison of annual household income reported in HUD's Public and Housing Information Center for approximately 1.1 million families to the applicable 2014 admission income limit, that as many as 25,226 families were subsequently over-income. Some of those families significantly exceeded the income limits. HUD seeks comment from PHAs and other interested parties and members of the public on the questions presented in this notice, including how HUD can structure policies to reduce the number of individuals and families in public housing whose incomes significantly exceed the income limit and have significantly exceeded the income limit for a sustained period of time after initial admission.

[Federal Register Volume 81, Number 22 (Wednesday, February 3, 2016)]
[Proposed Rules]
[Pages 5677-5679]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-01921]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 960

[Docket No. FR-5904-A-01]


Strengthening Oversight of Over-Income Tenancy in Public Housing; 
Advance Notice of Proposed Rulemaking

AGENCY: Office of the Assistant Secretary for Public and Indian 
Housing, HUD.

ACTION: Advanced notice of proposed rulemaking (ANPR).

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SUMMARY: Through this notice, HUD announces that it is considering 
rulemaking to ensure that individuals and families residing in HUD 
public housing in fact continue to need housing assistance from HUD 
after admission. HUD's consideration of rulemaking is prompted by a 
report recently issued by HUD's Office of Inspector General (OIG). The 
report found, through comparison of annual household income reported in 
HUD's Public and Housing Information Center for approximately 1.1 
million families to the applicable 2014 admission income limit, that as 
many as 25,226 families were subsequently over-income. Some of those 
families significantly exceeded the income limits. HUD seeks comment 
from PHAs and other interested parties and members of the public on the 
questions presented in this notice, including how HUD can structure 
policies to reduce the number of individuals and families in public 
housing whose incomes significantly exceed the income limit and have 
significantly exceeded the income limit for a sustained period of time 
after initial admission.

DATES: Comments Due Date: March 4, 2016.

ADDRESSES: Interested persons are invited to submit comments to the 
Office of the General Counsel, Regulations Division, Department of 
Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500.

[[Page 5678]]

Communications should refer to the above docket number and title and 
should contain the information specified in the ``Request for 
Comments'' section. There are two methods for submitting public 
comments.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500. Due to security measures at all federal 
agencies, however, submission of comments by mail often results in 
delayed delivery. To ensure timely receipt of comments, HUD recommends 
that comments submitted by mail be submitted at least two weeks in 
advance of the public comment deadline.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
http://www.regulations.gov. HUD strongly encourages commenters to 
submit comments electronically. Electronic submission of comments 
allows the commenter maximum time to prepare and submit a comment, 
ensures timely receipt by HUD, and enables HUD to make comments 
immediately available to the public. Comments submitted electronically 
through the http://www.regulations.gov Web site can be viewed by other 
commenters and interested members of the public. Commenters should 
follow instructions provided on that site to submit comments 
electronically.
    Note: To receive consideration as public comments, comments must be 
submitted using one of the two methods specified above. Again, all 
submissions must refer to the docket number and title of the notice.
    No Facsimile Comments. Facsimile (fax) comments are not acceptable.
    Public Inspection of Comments. All comments and communications 
submitted to HUD will be available, for public inspection and copying 
between 8 a.m. and 5 p.m. weekdays at the above address. Due to 
security measures at the HUD Headquarters building, an advance 
appointment to review the public comments must be scheduled by calling 
the Regulations Division at (202) 708-3055 (this is not a toll-free 
number). Copies of all comments submitted are available for inspection 
and downloading at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Todd Thomas, Office of Public and 
Indian Housing, Department of Housing and Urban Development, 451 7th 
Street SW., Room 4100, Washington DC 20410-4000; telephone number (678) 
732-2056 (this is not a toll-free number). Persons with hearing or 
speech impairments may contact this number via TTY by calling the toll-
free Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The United States Housing Act of 1937 (42 U.S.C. 1437 et. seq.) 
(1937 Act), which is the primary statute that governs public housing 
and its administration by HUD and PHAs, provides that public housing 
dwelling units shall be rented only to families who are low-income 
families at the time of their initial occupancy of such units. In 
accordance with the 1937 Act, and HUD regulations and policies, PHAs 
must undertake periodic reviews of family income. The 1937 Act does not 
require eviction or termination of tenancy of families whose income 
exceeds the income limits while residing in public housing. See 42 
U.S.C. 1437a. HUD's regulations at 24 CFR part 960, which govern public 
housing admissions, reflect this statutory framework.
    The parameters for income limits that determine initial eligibility 
for public housing are developed by HUD and outlined in 24 CFR part 5, 
subpart F. In general, HUD sets the low-income limit at 80 percent and 
very low-income limit at 50 percent of the median income for the county 
or metropolitan area in which the household resides. Income limits vary 
from area to area and may be adjusted based on local market 
conditions.\1\ Annual income is the anticipated total income from all 
sources received from the family head and spouse, and each additional 
member of the family 18 years of age or older. An individual's or 
family's rent is referred to as the Total Tenant Payment (TTP) and is 
based on a family's anticipated annual income less deductions, if any, 
or the applicable flat rent.
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    \1\ 2015 Income Limit Documentation http://www.huduser.gov/portal/datasets/il/il15/HUD_sec8_15.pdf.
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    On July 21, 2015, HUD's OIG issued an audit report that presented 
the results of OIG's review of the number of families residing in HUD 
public housing whose income exceed the current income limits used in 
determining eligibility for such housing, several of whom significantly 
exceeded the income limits. The families identified by HUD OIG met the 
income limits at the time of admission to public housing but their 
income now exceeds such income limits. Currently, the regulations do 
not prohibit a family from continued occupancy when their income rises 
above the limit for initial admission. An increase in income is a good 
and welcomed event for families, and when a family's income steadily 
rises, it may be an indication that the family is on its way to self-
sufficiency. However, an increase in income may be minimal or 
temporary, and a minimal or temporary rise in income should not be the 
basis for termination of public housing assistance. This ANPR solicits 
comment on how to structure policies to reduce the number of 
individuals and families whose incomes significantly exceed the income 
limit and have significantly exceeded the income limit for a sustained 
period of time after initial admission.
    HUD takes seriously its obligation to provide clean, safe 
affordable housing to the neediest population. The Public Housing 
program is an essential resource for some of the nation's most 
vulnerable families. HUD strongly supports the efforts of PHAs to 
further the goals of providing quality affordable housing to eligible 
families in a manner that moves families toward increased and sustained 
self-sufficiency. At the same time, scarce public resources must be 
provided to those most in need of affordable housing. Any changes that 
would require the termination of tenancy for over-income families 
should be enacted with caution so as not to impede a family's progress 
towards self-sufficiency.
    In a final rule published on November 26, 2004, at 69 FR 68786, HUD 
gave PHAs the authority to terminate the tenancy of or evict over-
income residents. See 24 CFR 960.261. The final rule did not require 
PHAs to take action to evict over-income residents but provides PHAs 
with discretion to implement such policies and thereby make units 
available to applicants who are income eligible. The final rule noted 
that the 1937 Act did not require eviction and the purpose of 
rulemaking was to clarify that the absence of such a statutory 
requirement did not prohibit PHAs from terminating the tenancy of over-
income families. The preamble to the rule stated that PHAs may decide 
that an over-income family is able to find other housing, and that the 
family's public housing unit could be made available to a family with 
greater housing need. The rule included discussion of the many factors 
that could be considered in developing these policies, including local 
market conditions, community stability, the source and duration of 
increased

[[Page 5679]]

income, and whether the resident was elderly or disabled.
    HUD is considering revising HUD's regulations at 24 CFR 960.261 
(Restriction on eviction of families based on income) in a manner that 
would continue to give PHAs discretion on when to evict or terminate 
the tenancies of over-income families but narrow that discretion by 
providing circumstances that would require a PHA to terminate tenancy 
or evict an over-income family. Specifically, HUD is considering 
whether a family whose income significantly exceeds the income limit 
and has exceeded such limit for a sustained period of time must be 
notified by the PHA that the family will be evicted or tenancy 
terminated. HUD is also considering what a reasonable period of time to 
find alternative housing would be.
    HUD is not considering whether to alter the existing statutorily 
based exceptions to eviction or termination of tenancy related to 
income limits. Specifically, a family over the income limits who has a 
valid contract for participation in a Family Self-Sufficiency (FSS) 
program administered under HUD regulations in 24 CFR part 984 would not 
be subject to eviction or termination of tenancy. Additionally, a PHA 
may not evict a family over the income limits if the family is 
currently receiving the earned income disallowance authorized by the 
1937 Act (See 42 U.S.C. 1473a(d)) and implemented through HUD 
regulations in 24 CFR 960.255 and 24 CFR 960.261(b).

II. Request for Comments

    In a letter provided to PHAs on September 3, 2015, HUD strongly 
recommended that PHAs adopt local over-income policies while 
considering many factors, including, but not limited to how over-income 
is defined, income stability, length of time to provide a safety net 
for fluctuating incomes, preference for return and hardship 
policies.\2\ In anticipation of a proposed rulemaking, HUD specifically 
solicits comment on the following issues:
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    \2\ This letter can be found at http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/ph.
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    1. How should HUD define income that ``significantly'' exceeds the 
income limit for public housing residency? Should such higher amount be 
determined by dollar amount, by a percentage, or as a function of the 
current income limit, and what should the amount be?
    2. Should area cost of living and family finances be taken into 
consideration when determining whether an individual or family no 
longer needs public housing assistance? Are there limits to the 
circumstances in which said data should be requested and applied in a 
determination?
    3. What period of time in which an individual or family has had 
income that significantly exceeds the income limits should be 
determined as indicative that the individual or family no longer needs 
public housing assistance?
    4. How should local housing market conditions or housing authority 
wait list data be considered?
    5. What period of time should be allowed for an individual or 
family to find alternative housing?
    6. Are there exceptions to eviction or termination of tenancy that 
HUD should consider beyond those listed in HUD's regulation in 24 CFR 
960.261?
    7. Should HUD allow over-income individuals or families to remain 
in public housing, while paying unsubsidized or fair market, rent? How 
would such a provision impact PHA operations and finances?
    8. Should HUD require a local appeals process for individuals or 
families deemed over-income?
    9. Where over-income policies have been implemented, what were the 
results to public housing residents and PHAs? What were the specific 
positive and negative impacts?
    10. What financial impact would over-income policies have on PHA 
operations, and how can any negative impacts be mitigated?
    11. What are the potential costs and benefits to public housing 
residents and PHAs that could result from the forcible eviction of 
public housing tenants?
    12. What evidence currently exists in favor of or against the 
adoption of this type of policy?
    It is the responsibility of HUD and PHAs to ensure that public 
housing units are available to those who need HUD assistance. All 
comments directed to steps that HUD and PHAs can take to ensure 
availability of public housing units for individuals and families 
meeting the income limits are welcome.

    Dated: January 25, 2016.
Lourdes Castro Ram[iacute]rez,
Principal Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 2016-01921 Filed 2-2-16; 8:45 am]
 BILLING CODE 4210-67-P