Reducing Barriers to HUD-Assisted Housing

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT <CFR>24 CFR Parts 5, 245, 882, 960, 966, and 982</CFR> <DEPDOC>[Docket No. FR-6362-P-01]</DEPDOC> <RIN>RIN 2501-AE08</RIN> <SUBJECT>Reducing Barriers to HUD-Assisted Housing</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of the Secretary, U.S. Department of Housing and Urban Development (HUD). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This proposed rule would amend the regulations for certain HUD Public and Indian Housing and Housing Programs. The proposed amendments would revise existing regulations that govern admission for applicants with criminal records or a history of involvement with the criminal justice system and eviction or termination of assistance of persons on the basis of illegal drug use, drug-related criminal activity, or other criminal activity. The proposed revisions would require that prior to any discretionary denial or termination for criminal activity, PHAs and assisted housing owners take into consideration multiple sources of information, including but not limited to the recency and relevance of prior criminal activity. They are intended to minimize unnecessary exclusions from these programs while allowing providers to maintain the health, safety, and peaceful enjoyment of their residents, their staffs, and their communities. The proposed rule is intended to both clarify existing PHA and owner obligations and reduce the risk of violation of nondiscrimination laws. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments are due no later than June 10, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Interested persons are invited to submit comments regarding this rule. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title. 1. <E T="03">Submission of Comments by Mail.</E> 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. 2. <E T="03">Electronic Submission of Comments.</E> Interested persons may submit comments electronically through the Federal eRulemaking Portal at <E T="03">http://www.regulations.gov.</E> 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 them immediately available to the public. Comments submitted electronically through the <E T="03">http://www.regulations.gov</E> website can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that website to submit comments electronically. <NOTE> <HD SOURCE="HED">Note:</HD> To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule. </NOTE> <E T="03">No Facsimile Comments.</E> Facsimile (FAX) comments are not acceptable. <E T="03">Public Inspection of Public Comments.</E> All comments and communications properly 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). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as from individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit <E T="03">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.</E> In accordance with 5 U.S.C. 553(b)(4), a summary of this proposed rule may be found at <E T="03">www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Danielle Bastarache, Deputy Assistant Secretary for Public Housing and Voucher Programs, Room 4204, U.S. Department of Housing and Urban Development, 451 Seventh Street SW, Washington, DC 20410; telephone (202) 402-1380 (this is not a toll-free number) for the Public Housing and Section 8 programs. Ethan Handelman, Deputy Assistant Secretary for Multifamily Housing, Room 6106, U.S. Department of Housing and Urban Development, 451 Seventh Street SW, Washington, DC 20410; telephone (202) 402-2495 (this is not a toll-free number) for Multifamily Housing programs. HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit <E T="03">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Executive Summary</HD> Everyone deserves to be considered as the individual they are, and everyone needs a safe and affordable place to live. For people with criminal records, having a stable place to live is critical to rebuilding a productive life. Yet too many people who apply for housing opportunities are not given full consideration as individuals, but instead are denied opportunities simply because they have a criminal record. Criminal records are often incomplete or inaccurate, and criminal conduct that occurred years ago may not be indicative of a person's current fitness as a tenant. These unnecessary exclusions disproportionately harm Black and Brown people, Native Americans, other people of color, people with disabilities, and other historically marginalized and underserved communities. In April 2016, HUD issued guidance to all housing providers cautioning that unnecessary and unwarranted exclusions based on criminal records may create a risk of Fair Housing Act liability because they can have an unjustified disparate impact based on race. <SU>1</SU> <FTREF/> That guidance advised housing providers that individualized assessments that take into account relevant mitigating information are likely to have a less discriminatory effect than categorical exclusions based on criminal record. <FTNT> <SU>1</SU>   <E T="03">Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions</E> (April 4, 2016), available at <E T="03">https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF.</E> </FTNT> Yet too often, people still are being excluded from HUD-assisted housing for convictions that do not reflect at all on current fitness for tenancy, such as stale convictions that date back more than a quarter century, or those for low-level nonviolent offenses, such as riding a subway without paying a fare. Such exclusions do little to further legitimate interests such as safety, as mounting evidence shows and an increasing number of housing providers and public housing agencies (PHAs) now recognize. This proposed rule would help standardize practices within HUD programs with respect to prospective tenants. It would provide clearer, common-sense rules and standards to help HUD-subsidized housing providers and PHAs carry out the legitimate and important ends of maintaining the safety of their properties and the surrounding communities and following federal law (which requires exclusion from HUD-assisted housing of people who are engaged in certain conduct or have certain criminal history), but without engaging in overbroad or discriminatory denials of housing. This proposed rule would establish in HUD program regulations a set of practices that already are required of housing providers under state and local law in much of the country; that are consistent with guidance HUD has provided to all housing providers to comply with the Fair Housing Act and to HUD-subsidized providers and PHAs to comply with program rules; and that, as HUD has heard from its industry partners, are already being used and work in practice to effectively balance various equities. In doing so, the proposed rule would clarify a legal landscape that many HUD-subsidized housing providers and PHAs find confusing, leading to divergent practices within HUD programs. While existing HUD regulations generally <E T="03">permit</E> a fact-specific, individualized assessment approach, they have not been updated to clearly <E T="03">require</E> it. This proposed rule would cover various HUD programs, including public housing and Section 8 assisted housing programs, as well as the Section 221(d)(3) below market interest rate (BMIR) program, the Section 202 program for the elderly, the Section 811 program for persons with disabilities, and the Section 236 interest reduction payment program, and in doing so would amend existing programmatic regulations. A summary of some of the ways in which these changes would impact different program rules are explained below: <E T="03">Clarifying what counts as relevant criminal activity and how recently it must have occurred:</E> Existing regulations permit an assisted owner or PHA (for voucher applicants) to prohibit admission when the household has engaged in, “in a reasonable time prior to admission,” (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 of 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. While public housing regulati ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 352k characters. 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