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U.S. Code as of:
01/19/04
Section 1437d. Contract provisions and requirements; loans and annual contributions
(a) Conditions; elevators
The Secretary may include in any contract for loans,
contributions, sale, lease, mortgage, or any other agreement or
instrument made pursuant to this chapter, such covenants,
conditions, or provisions as he may deem necessary in order to
insure the lower income character of the project involved, in a
manner consistent with the public housing agency plan. Any such
contract shall require that, except in the case of housing
predominantly for elderly or disabled families, high-rise elevator
projects shall not be provided for families with children unless
the Secretary makes a determination that there is no practical
alternative.
(b) Limitation on development costs
(1) Each contract for loans (other than preliminary loans) or
contributions for the development, acquisition, or operation of
public housing shall provide that the total development cost of the
project on which the computation of any annual contributions under
this chapter may be based may not exceed the amount determined
under paragraph (2) (for the appropriate structure type) unless the
Secretary provides otherwise, and in any case may not exceed 110
per centum of such amount unless the Secretary for good cause
determines otherwise.
(2) For purposes of paragraph (1), the Secretary shall determine
the total development cost by multiplying the construction cost
guideline for the project (which shall be determined by averaging
the current construction costs, as listed by not less than 2
nationally recognized residential construction cost indices, for
publicly bid construction of a good and sound quality) by -
(A) in the case of elevator type structures, 1.6; and
(B) in the case of nonelevator type structures, 1.75.
(3) In calculating the total development cost of a project under
paragraph (2), the Secretary shall consider only capital assistance
provided by the Secretary to a public housing agency that are )1(!
authorized for use in connection with the development of public
housing, and shall exclude all other amounts, including amounts
provided under -
(A) the HOME investment partnerships program authorized under
title II of the Cranston-Gonzalez National Affordable Housing Act
[42 U.S.C. 12721 et seq.]; or
(B) the community development block grants program under title
I of the Housing and Community Development Act of 1974 [42 U.S.C.
5301 et seq.].
(4) The Secretary may restrict the amount of capital funds that a
public housing agency may use to pay for housing construction
costs. For purposes of this paragraph, housing construction costs
include the actual hard costs for the construction of units,
builders' overhead and profit, utilities from the street, and
finish landscaping.
(c) Revision of maximum income limits; certification of compliance
with requirements; notification of eligibility; informal hearing;
compliance with procedures for sound management
Every contract for contributions shall provide that -
(1) the Secretary may require the public housing agency to
review and revise its maximum income limits if the Secretary
determines that changed conditions in the locality make such
revision necessary in achieving the purposes of this chapter;
(2) the public housing agency shall determine, and so certify
to the Secretary, that each family in the project was admitted in
accordance with duly adopted regulations and approved income
limits; and the public housing agency shall review the incomes of
families living in the project no less frequently than annually;
(3) the public housing agency shall promptly notify (i) any
applicant determined to be ineligible for admission to the
project of the basis for such determination and provide the
applicant upon request, within a reasonable time after the
determination is made, with an opportunity for an informal
hearing on such determination, and (ii) any applicant determined
to be eligible for admission to the project of the approximate
date of occupancy insofar as such date can be reasonably
determined; and
(4) the public housing agency shall comply with such procedures
and requirements as the Secretary may prescribe to assure that
sound management practices will be followed in the operation of
the project, including requirements pertaining to -
(A) making dwelling units in public housing available for
occupancy, which shall provide that the public housing agency
may establish a system for making dwelling units available that
provides preference for such occupancy to families having
certain characteristics; each system of preferences established
pursuant to this subparagraph shall be based upon local housing
needs and priorities, as determined by the public housing
agency using generally accepted data sources, including any
information obtained pursuant to an opportunity for public
comment as provided under section 1437c-1(f) of this title and
under the requirements applicable to the comprehensive housing
affordability strategy for the relevant jurisdiction;
(B) the establishment of satisfactory procedures designed to
assure the prompt payment and collection of rents and the
prompt processing of evictions in the case of nonpayment of
rent;
(C) the establishment of effective tenant-management
relationships designed to assure that satisfactory standards of
tenant security and project maintenance are formulated and that
the public housing agency (together with tenant councils where
they exist) enforces those standards fully and effectively;
(D) the development by local housing authority managements of
viable homeownership opportunity programs for low-income
families capable of assuming the responsibilities of
homeownership;
(E) for each agency that receives assistance under this
subchapter, the establishment and maintenance of a system of
accounting for rental collections and costs (including
administrative, utility, maintenance, repair and other
operating costs) for each project or operating cost center (as
determined by the Secretary), which collections and costs shall
be made available to the general public and submitted to the
appropriate local public official (as determined by the
Secretary); except that the Secretary may permit agencies
owning or operating less than 500 units to comply with the
requirements of this subparagraph by accounting on an
agency-wide basis; and
(F) requiring the public housing agency to ensure and
maintain compliance with subtitle C of title VI of the Housing
and Community Development Act of 1992 [42 U.S.C. 13601 et seq.]
and any regulations issued under such subtitle.
(d) Exemption from personal and real property taxes; payments in
lieu of taxes; cash contribution or tax remission
Every contract for contributions with respect to a low-income
housing project shall provide that no contributions by the
Secretary shall be made available for such project unless such
project (exclusive of any portion thereof which is not assisted by
contributions under this chapter) is exempt from all real and
personal property taxes levied or imposed by the State, city,
county, or other political subdivision; and such contract shall
require the public housing agency to make payments in lieu of taxes
equal to 10 per centum of the sum of the shelter rents charged in
such project, or such lesser amount as (i) is prescribed by State
law, or (ii) is agreed to by the local governing body in its
agreement for local cooperation with the public housing agency
required under section 1437c(e)(2) of this title, or (iii) is due
to failure of a local public body or bodies other than the public
housing agency to perform any obligation under such agreement. If
any such project is not exempt from all real and personal property
taxes levied or imposed by the State, city, county, or other
political subdivision, such contract shall provide, in lieu of the
requirement for tax exemption and payments in lieu of taxes, that
no contributions by the Secretary shall be made available for such
project unless and until the State, city, county, or other
political subdivision in which such project is situated shall
contribute, in the form of cash or tax remission, the amount by
which the taxes paid with respect to the project exceed 10 per
centum of the shelter rents charged in such project.
(e) Repealed. Pub. L. 105-276, title V, Sec. 529(2), Oct. 21, 1998,
112 Stat. 2569
(f) Housing quality requirements
(1) In general
Each contract for contributions for a public housing agency
shall require that the agency maintain its public housing in a
condition that complies with standards which meet or exceed the
housing quality standards established under paragraph (2).
(2) Federal standards
The Secretary shall establish housing quality standards under
this paragraph that ensure that public housing dwelling units are
safe and habitable. Such standards shall include requirements
relating to habitability, including maintenance, health and
sanitation factors, condition, and construction of dwellings, and
shall, to the greatest extent practicable, be consistent with the
standards established under section 1437f(o)(8)(B)(i) of this
title. The Secretary may determine whether the laws, regulations,
standards, or codes of any State or local jurisdiction meet or
exceed these standards, for purposes of this subsection.
(3) Annual inspections
Each public housing agency that owns or operates public housing
shall make an annual inspection of each public housing project to
determine whether units in the project are maintained in
accordance with the requirements under paragraph (1). The agency
shall retain the results of such inspections and, upon the
request of the Secretary, the Inspector General for the
Department of Housing and Urban Development, or any auditor
conducting an audit under section 1437c(h) of this title, shall
make such results available.
(g) Substantial default; conveyance of title and delivery of
possession; reconveyance and redelivery; payments for outstanding
obligations
Every contract for contributions (including contracts which amend
or supersede contracts previously made) may provide that -
(1) upon the occurrence of a substantial default in respect to
the covenants or conditions to which the public housing agency is
subject (as such substantial default shall be defined in such
contract), the public housing agency shall be obligated at the
option of the Secretary either to convey title in any case where,
in the determination of the Secretary (which determination shall
be final and conclusive), such conveyance of title is necessary
to achieve the purposes of this chapter, or to deliver to the
Secretary possession of the project, as then constituted, to
which such contract relates; and
(2) the Secretary shall be obligated to reconvey or redeliver
possession of the project as constituted at the time of
reconveyance or redelivery, to such public housing agency or to
its successor (if such public housing agency or a successor
exists) upon such terms as shall be prescribed in such contract,
and as soon as practicable (i) after the Secretary is satisfied
that all defaults with respect to the project have been cured,
and that the project will, in order to fulfill the purposes of
this chapter, thereafter be operated in accordance with the terms
of such contract; or (ii) after the termination of the obligation
to make annual contributions available unless there are any
obligations or covenants of the public housing agency to the
Secretary which are then in default. Any prior conveyances and
reconveyances or deliveries and redeliveries of possession shall
not exhaust the right to require a conveyance or delivery of
possession of the project to the Secretary pursuant to
subparagraph (1) upon the subsequent occurrence of a substantial
default.
Whenever such a contract for annual contributions includes
provisions which the Secretary in such contract determines are in
accordance with this subsection, and the portion of the annual
contribution payable for debt service requirements pursuant to such
contract has been pledged by the public housing agency as security
for the payment of the principal and interest on any of its
obligations, the Secretary (notwithstanding any other provisions of
this chapter) shall continue to make such annual contributions
available for the project so long as any of such obligations remain
outstanding, and may covenant in such contract that in any event
such annual contributions shall in each year be at least equal to
an amount which, together with such income or other funds as are
actually available from the project for the purpose at the time
such annual contribution is made, will suffice for the payment of
all installments, falling due within the next succeeding twelve
months, of principal and interest on the obligations for which the
annual contributions provided for in the contract shall have been
pledged as security. In no case shall such annual contributions be
in excess of the maximum sum specified in the contract involved,
nor for longer than the remainder of the maximum period fixed by
the contract.
(h) New construction contracts
On or after October 1, 1983, the Secretary may enter into a
contract involving new construction only if the public housing
agency demonstrates to the satisfaction of the Secretary that the
cost of new construction in the neighborhood where the public
housing agency determines the housing is needed is less than the
cost of acquisition or acquisition and rehabilitation in such
neighborhood, including any reserve fund under subsection (i) of
this section, would be.
(i) Reserve fund; major repairs
The Secretary may, upon application by a public housing agency in
connection with the acquisition of housing for use as public
housing, establish and set aside a reserve fund in an amount not to
exceed 30 per centum of the acquisition cost which shall be
available for use for major repairs to such housing.
(j) Performance indicators for public housing agencies
(1) The Secretary shall develop and publish in the Federal
Register indicators to assess the management performance of public
housing agencies and resident management corporations. The
indicators shall be established by rule under section 553 of title
5. Such indicators shall enable the Secretary to evaluate the
performance of public housing agencies and resident management
corporations in all major areas of management operations. The
Secretary shall, in particular, use the following indicators for
public housing agencies, to the extent practicable:
(A) The number and percentage of vacancies within an agency's
inventory, including the progress that an agency has made within
the previous 3 years to reduce such vacancies.
(B) The amount and percentage of funds provided to the public
housing agency from the Capital Fund under section 1437g(d) of
this title which remain unobligated by the public housing agency
after 3 years.
(C) The percentage of rents uncollected.
(D) The utility consumption (with appropriate adjustments to
reflect different regions and unit sizes).
(E) The average period of time that an agency requires to
repair and turn-around vacant units.
(F) The proportion of maintenance work orders outstanding,
including any progress that an agency has made during the
preceding 3 years to reduce the period of time required to
complete maintenance work orders.
(G) The percentage of units that an agency fails to inspect to
ascertain maintenance or modernization needs within such period
of time as the Secretary deems appropriate (with appropriate
adjustments, if any, for large and small agencies).
(H) The extent to which the public housing agency -
(i) coordinates, promotes, or provides effective programs and
activities to promote the economic self-sufficiency of public
housing residents; and
(ii) provides public housing residents with opportunities for
involvement in the administration of the public housing.
(I) )2(! The extent to which the public housing agency -
(i) implements effective screening and eviction policies and
other anticrime strategies; and
(ii) coordinates with local government officials and
residents in the project and implementation of such strategies.
(J) The extent to which the public housing agency is providing
acceptable basic housing conditions.
(K) Any other factors as the Secretary deems appropriate which
shall not exceed the seven factors in the statute, plus an
additional five.
(I) )3(! The Secretary shall:
(1) administer the system of evaluating public housing
agencies flexibly to ensure that such agencies are not
penalized as result of circumstances beyond their control;
(2) reflect in the weights assigned to the various indicators
the differences in the difficulty of managing individual
projects that result from their physical condition and their
neighborhood environment; and
(3) determine a public housing agency's status as "troubled
with respect to the program under section 1437l )4(! of this
title" based upon factors solely related to its ability to
carry out that program.
(2)(A)(i) The Secretary shall, under the rulemaking procedures
under section 553 of title 5, establish procedures for designating
troubled public housing agencies, which procedures shall include
identification of serious and substantial failure to perform as
measured by the performance indicators specified under paragraph
(1) and such other factors as the Secretary may deem to be
appropriate. Such procedures shall provide that an agency that
fails on a widespread basis to provide acceptable basic housing
conditions for its residents shall be designated as a troubled
public housing agency. The Secretary may use a simplified set of
indicators for public housing agencies with less than 250 public
housing units. The Secretary shall also designate, by rule under
section 553 of title 5, agencies that are troubled with respect to
the program for assistance from the Capital Fund under section
1437g(d) of this title.
(ii) The Secretary may also, in consultation with national
organizations representing public housing agencies and public
officials (as the Secretary determines appropriate), identify and
commend public housing agencies that meet the performance standards
established under paragraph (1) in an exemplary manner.
(iii) The Secretary shall establish procedures for public housing
agencies to appeal designation as a troubled agency (including
designation as a troubled agency for purposes of the program for
assistance from the Capital Fund under section 1437g(d) of this
title), to petition for removal of such designation, and to appeal
any refusal to remove such designation.
(B)(i) Upon designating a public housing agency with more than
250 units as troubled pursuant to subparagraph (A) and determining
that an assessment under this subparagraph will not duplicate any
comparable and recent review, the Secretary shall provide for an
on-site, independent assessment of the management of the agency.
(ii) To the extent the Secretary deems appropriate (taking into
account an agency's performance under the indicators specified
under paragraph (1)), the assessment team shall also consider
issues relating to the agency's resident population and physical
inventory, including the extent to which (I) the agency's
comprehensive plan prepared pursuant to section 1437l )4(! of this
title adequately and appropriately addresses the rehabilitation
needs of the agency's inventory, (II) residents of the agency are
involved in and informed of significant management decisions, and
(III) any projects in the agency's inventory are severely
distressed and eligible for assistance pursuant to section 1437v of
this title.
(iii) An independent assessment under this subparagraph shall be
carried out by a team of knowledgeable individuals selected by the
Secretary (referred to in this section as the "assessment team")
with expertise in public housing and real estate management. In
conducting an assessment, the assessment team shall consult with
the residents and with public and private entities in the
jurisdiction in which the public housing is located. The assessment
team shall provide to the Secretary and the public housing agency a
written report, which shall contain, at a minimum, recommendations
for such management improvements as are necessary to eliminate or
substantially remedy existing deficiencies.
(C) The Secretary shall seek to enter into an agreement with each
troubled public housing agency, after reviewing the report
submitted pursuant to subparagraph (B) (if applicable) and
consulting with the agency's assessment team. Such agreement shall
set forth -
(i) targets for improving performance as measured by the
performance indicators specified under paragraph (1) and other
requirements within a specified period of time;
(ii) strategies for meeting such targets, including a
description of the technical assistance that the Secretary will
make available to the agency; and
(iii) incentives or sanctions for effective implementation of
such strategies, which may include any constraints on the use of
funds that the Secretary determines are appropriate.
To the extent the Secretary deems appropriate (taking into account
an agency's performance under the indicators specified under
paragraph (1)), such agreement shall also set forth a plan for
enhancing resident involvement in the management of the public
housing agency. The Secretary and the public housing agency shall,
to the maximum extent practicable, seek the assistance of local
public and private entities in carrying out the agreement.
(D) The Secretary shall apply the provisions of this paragraph to
resident management corporations as well as public housing
agencies.
(3)(A) Notwithstanding any other provision of law or of any
contract for contributions, upon the occurrence of events or
conditions that constitute a substantial default by a public
housing agency with respect to the covenants or conditions to which
the public housing agency is subject or an agreement entered into
under paragraph (2), the Secretary may -
(i) solicit competitive proposals from other public housing
agencies and private housing management agents which (I) in the
discretion of the Secretary, may be selected by existing public
housing residents through administrative procedures established
by the Secretary, and (II) if appropriate, shall provide for such
agents to manage all, or part, of the housing administered by the
public housing agency or all or part of the other programs of the
agency;
(ii) petition for the appointment of a receiver (which may be
another public housing agency or a private management
corporation) of the public housing agency to any district court
of the United States or to any court of the State in which the
real property of the public housing agency is situated, that is
authorized to appoint a receiver for the purposes and having the
powers prescribed in this subsection;
(iii) solicit competitive proposals from other public housing
agencies and private entities with experience in construction
management in the eventuality that such agencies or firms may be
needed to oversee implementation of assistance made available
from the Capital Fund under section 1437g(d) of this title for
the housing; and )5(!
(iv) take possession of all or part of the public housing
agency, including all or part of any project or program of the
agency, including any project or program under any other
provision of this subchapter; and
(v) require the agency to make other arrangements acceptable to
the Secretary and in the best interests of the public housing
residents and families assisted under section 1437f of this title
for managing all, or part, of the public housing administered by
the agency or of the programs of the agency.
Residents of a public housing agency designated as troubled
pursuant to paragraph (2)(A) may petition the Secretary in writing
to take 1 or more of the actions referred to in this subparagraph.
The Secretary shall respond to such petitions in a timely manner
with a written description of the actions, if any, the Secretary
plans to take and, where applicable, the reasons why such actions
differ from the course proposed by the residents.
(B)(i) If a public housing agency is identified as troubled under
this subsection, the Secretary shall notify the agency of the
troubled status of the agency.
(ii)(I) Upon the expiration of the 1-year period beginning on the
later of the date on which the agency receives initial notice from
the Secretary of the troubled status of the agency under clause (i)
and October 21, 1998, the agency shall improve its performance, as
measured by the performance indicators established pursuant to
paragraph (1), by at least 50 percent of the difference between the
most recent performance measurement and the measurement necessary
to remove that agency's designation as troubled.
(II) Upon the expiration of the 2-year period beginning on the
later of the date on which the agency receives initial notice from
the Secretary of the troubled status of the agency under clause (i)
and October 21, 1998, the agency shall improve its performance, as
measured by the performance indicators established pursuant to
paragraph (1), such that the agency is no longer designated as
troubled.
(III) In the event that a public housing agency designated as
troubled under this subsection fails to comply with the
requirements set forth in subclause (I) or (II), the Secretary
shall -
(aa) in the case of a troubled public housing agency with 1,250
or more units, petition for the appointment of a receiver
pursuant to subparagraph (A)(ii); or
(bb) in the case of a troubled public housing agency with fewer
than 1,250 units, either petition for the appointment of a
receiver pursuant to subparagraph (A)(ii), or take possession of
the public housing agency (including all or part of any project
or program of the agency) pursuant to subparagraph (A)(iv) and
appoint, on a competitive or noncompetitive basis, an individual
or entity as an administrative receiver to assume the
responsibilities of the Secretary for the administration of all
or part of the public housing agency (including all or part of
any project or program of the agency).
This subparagraph shall not be construed to limit the courses of
action available to the Secretary under subparagraph (A).
(IV) During the period between the date on which a petition is
filed under subclause (III)(aa) and the date on which a receiver
assumes responsibility for the management of the public housing
agency under such subclause, the Secretary may take possession of
the public housing agency (including all or part of any project or
program of the agency) pursuant to subparagraph (A)(iv) and may
appoint, on a competitive or noncompetitive basis, an individual or
entity as an administrative receiver to assume the responsibilities
of the Secretary for the administration of all or part of the
public housing agency (including all or part of any project or
program of the agency).
(C) If a receiver is appointed pursuant to subparagraph (A)(ii),
in addition to the powers accorded by the court appointing the
receiver, the receiver -
(i) may abrogate any contract to which the United States or an
agency of the United States is not a party that, in the
receiver's written determination (which shall include the basis
for such determination), substantially impedes correction of the
substantial default, but only after the receiver determines that
reasonable efforts to renegotiate such contract have failed;
(ii) may demolish and dispose of all or part of the assets of
the public housing agency (including all or part of any project
of the agency) in accordance with section 1437p of this title,
including disposition by transfer of properties to
resident-supported nonprofit entities;
(iii) if determined to be appropriate by the Secretary, may
seek the establishment, as permitted by applicable State and
local law, of 1 or more new public housing agencies;
(iv) if determined to be appropriate by the Secretary, may seek
consolidation of all or part of the agency (including all or part
of any project or program of the agency), as permitted by
applicable State and local laws, into other well-managed public
housing agencies with the consent of such well-managed agencies;
and
(v) shall not be required to comply with any State or local law
relating to civil service requirements, employee rights (except
civil rights), procurement, or financial or administrative
controls that, in the receiver's written determination (which
shall include the basis for such determination), substantially
impedes correction of the substantial default.
(D)(i) If, pursuant to subparagraph (A)(iv), the Secretary takes
possession of all or part of the public housing agency, including
all or part of any project or program of the agency, the Secretary
-
(I) may abrogate any contract to which the United States or an
agency of the United States is not a party that, in the written
determination of the Secretary (which shall include the basis for
such determination), substantially impedes correction of the
substantial default, but only after the Secretary determines that
reasonable efforts to renegotiate such contract have failed;
(II) may demolish and dispose of all or part of the assets of
the public housing agency (including all or part of any project
of the agency) in accordance with section 1437p of this title,
including disposition by transfer of properties to
resident-supported nonprofit entities;
(III) may seek the establishment, as permitted by applicable
State and local law, of 1 or more new public housing agencies;
(IV) may seek consolidation of all or part of the agency
(including all or part of any project or program of the agency),
as permitted by applicable State and local laws, into other
well-managed public housing agencies with the consent of such
well-managed agencies;
(V) shall not be required to comply with any State or local law
relating to civil service requirements, employee rights (except
civil rights), procurement, or financial or administrative
controls that, in the Secretary's written determination (which
shall include the basis for such determination), substantially
impedes correction of the substantial default; and
(VI) shall, without any action by a district court of the
United States, have such additional authority as a district court
of the United States would have the authority to confer upon a
receiver to achieve the purposes of the receivership.
(ii) If, pursuant to subparagraph (B)(ii)(III)(bb), the Secretary
appoints an administrative receiver to assume the responsibilities
of the Secretary for the administration of all or part of the
public housing agency (including all or part of any project or
program of the agency), the Secretary may delegate to the
administrative receiver any or all of the powers given the
Secretary by this subparagraph, as the Secretary determines to be
appropriate and subject to clause (iii).
(iii) An administrative receiver may not take an action described
in subclause (III) or (IV) of clause (i) unless the Secretary first
approves an application by the administrative receiver to authorize
such action.
(E) The Secretary may make available to receivers and other
entities selected or appointed pursuant to this paragraph such
assistance as the Secretary determines in the discretion of the
Secretary is necessary and available to remedy the substantial
deterioration of living conditions in individual public housing
projects or other related emergencies that endanger the health,
safety, and welfare of public housing residents or families
assisted under section 1437f of this title. A decision made by the
Secretary under this paragraph shall not be subject to review in
any court of the United States, or in any court of any State,
territory, or possession of the United States.
(F) In any proceeding under subparagraph (A)(ii), upon a
determination that a substantial default has occurred and without
regard to the availability of alternative remedies, the court shall
appoint a receiver to conduct the affairs of all or part of the
public housing agency in a manner consistent with this chapter and
in accordance with such further terms and conditions as the court
may provide. The receiver appointed may be another public housing
agency, a private management corporation, or any other person or
appropriate entity. The court shall have power to grant appropriate
temporary or preliminary relief pending final disposition of the
petition by the Secretary.
(G) The appointment of a receiver pursuant to this paragraph may
be terminated, upon the petition of any party, when the court
determines that all defaults have been cured or the public housing
agency is capable again of discharging its duties.
(H) If the Secretary (or an administrative receiver appointed by
the Secretary) takes possession of a public housing agency
(including all or part of any project or program of the agency), or
if a receiver is appointed by a court, the Secretary or receiver
shall be deemed to be acting not in the official capacity of that
person or entity, but rather in the capacity of the public housing
agency, and any liability incurred, regardless of whether the
incident giving rise to that liability occurred while the Secretary
or receiver was in possession of all or part of the public housing
agency (including all or part of any project or program of the
agency), shall be the liability of the public housing agency.
(4) Sanctions for improper use of amounts. -
(A) In general. - In addition to any other actions authorized
under this chapter, if the Secretary finds that a public housing
agency receiving assistance amounts under section 1437g of this
title for public housing has failed to comply substantially with
any provision of this chapter relating to the public housing
program, the Secretary may -
(i) terminate assistance payments under this )6(! section
1437g of this title to the agency;
(ii) withhold from the agency amounts from the total
allocations for the agency pursuant to section 1437g of this
title;
(iii) reduce the amount of future assistance payments under
section 1437g of this title to the agency by an amount equal to
the amount of such payments that were not expended in
accordance with this chapter;
(iv) limit the availability of assistance amounts provided to
the agency under section 1437g of this title to programs,
projects, or activities not affected by such failure to comply;
(v) withhold from the agency amounts allocated for the agency
under section 1437f of this title; or
(vi) order other corrective action with respect to the
agency.
(B) Termination of compliance action. - If the Secretary takes
action under subparagraph (A) with respect to a public housing
agency, the Secretary shall -
(i) in the case of action under subparagraph (A)(i), resume
payments of assistance amounts under section 1437g of this
title to the agency in the full amount of the total allocations
under section 1437g of this title for the agency at the time
that the Secretary first determines that the agency will comply
with the provisions of this chapter relating to the public
housing program;
(ii) in the case of action under clause (ii) or (v) of
subparagraph (A), make withheld amounts available as the
Secretary considers appropriate to ensure that the agency
complies with the provisions of this chapter relating to such
program;
(iii) in the case of action under subparagraph (A)(iv),
release such restrictions at the time that the Secretary first
determines that the agency will comply with the provisions of
this chapter relating to such program; or
(iv) in the case of action under subparagraph (vi), cease
such action at the time that the Secretary first determines
that the agency will comply with the provisions of this chapter
relating to such program.
(5) The Secretary shall submit to the Congress annually, as a
part of the report of the Secretary under section 3536 of this
title, a report that -
(A) identifies the public housing agencies that have been
designated as troubled under paragraph (2);
(B) describes the grounds on which such public housing agencies
were designated as troubled and continue to be so designated;
(C) describes the agreements that have been entered into with
such agencies under such paragraph;
(D) describes the status of progress under such agreements;
(E) describes any action that has been taken in accordance with
paragraph (3), including an accounting of the authorized funds
that have been expended to support such actions; and
(F) describes the status of any public housing agency
designated as troubled with respect to the program for assistance
from the Capital Fund under section 1437g(d) of this title and
specifies the amount of assistance the agency received under such
program.
(6)(A) To the extent that the Secretary determines such action to
be necessary in order to ensure the accuracy of any certification
made under this section, the Secretary shall require an independent
auditor to review documentation or other information maintained by
a public housing agency pursuant to this section to substantiate
each certification submitted by the agency or corporation relating
to the performance of that agency or corporation.
(B) The Secretary may withhold, from assistance otherwise payable
to the agency or corporation under section 1437g of this title,
amounts sufficient to pay for the reasonable costs of any review
under this paragraph.
(7) The Secretary shall apply the provisions of this subsection
to resident management corporations in the same manner as applied
to public housing agencies.
(k) Administrative grievance procedure regulations: grounds of
adverse action, hearing, examination of documents,
representation, evidence, decision; judicial hearing; eviction
and termination procedures
The Secretary shall by regulation require each public housing
agency receiving assistance under this chapter to establish and
implement an administrative grievance procedure under which tenants
will -
(1) be advised of the specific grounds of any proposed adverse
public housing agency action;
(2) have an opportunity for a hearing before an impartial party
upon timely request within any period applicable under subsection
(l) of this section;
(3) have an opportunity to examine any documents or records or
regulations related to the proposed action;
(4) be entitled to be represented by another person of their
choice at any hearing;
(5) be entitled to ask questions of witnesses and have others
make statements on their behalf; and
(6) be entitled to receive a written decision by the public
housing agency on the proposed action.
For any grievance concerning an eviction or termination of tenancy
that involves any activity that threatens the health, safety, or
right to peaceful enjoyment of the premises of other tenants or
employees of the public housing agency or any violent or
drug-related criminal activity on or off such premises, or any
activity resulting in a felony conviction, the agency may (A)
establish an expedited grievance procedure as the Secretary shall
provide by rule under section 553 of title 5, or (B) exclude from
its grievance procedure any such grievance, in any jurisdiction
which requires that prior to eviction, a tenant be given a hearing
in court which the Secretary determines provides the basic elements
of due process (which the Secretary shall establish by rule under
section 553 of title 5). Such elements of due process shall not
include a requirement that the tenant be provided an opportunity to
examine relevant documents within the possession of the public
housing agency. The agency shall provide to the tenant a reasonable
opportunity, prior to hearing or trial, to examine any relevant
documents, records, or regulations directly related to the eviction
or termination.
(l) Leases; terms and conditions; maintenance; termination
Each public housing agency shall utilize leases which -
(1) have a term of 12 months and shall be automatically renewed
for all purposes except for noncompliance with the requirements
under section 1437j(c) of this title (relating to community
service requirements); except that nothing in this subchapter
shall prevent a resident from seeking timely redress in court for
failure to renew based on such noncompliance;
(2) do not contain unreasonable terms and conditions;
(3) obligate the public housing agency to maintain the project
in a decent, safe, and sanitary condition;
(4) require the public housing agency to give adequate written
notice of termination of the lease which shall not be less than -
(A) a reasonable period of time, but not to exceed 30 days -
(i) if the health or safety of other tenants, public
housing agency employees, or persons residing in the
immediate vicinity of the premises is threatened; or
(ii) in the event of any drug-related or violent criminal
activity or any felony conviction;
(B) 14 days in the case of nonpayment of rent; and
(C) 30 days in any other case, except that if a State or
local law provides for a shorter period of time, such shorter
period shall apply;
(5) require that the public housing agency may not terminate
the tenancy except for serious or repeated violation of the terms
or conditions of the lease or for other good cause;
(6) 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 public housing tenant, any member
of the tenant's household, or any guest or other person under the
tenant's control, shall be cause for termination of tenancy;
(7) specify that with respect to any notice of eviction or
termination, notwithstanding any State law, a public housing
tenant shall be informed of the opportunity, prior to any hearing
or trial, to examine any relevant documents, records, or
regulations directly related to the eviction or termination;
(7) )7(! provide that any occupancy in violation of section
13661(b) of this title (relating to ineligibility of illegal drug
users and alcohol abusers) or the furnishing of any false or
misleading information pursuant to section 13662 of this title
(relating to termination of tenancy and assistance for illegal
drug users and alcohol abusers) shall be cause for termination of
tenancy; )8(!
(9) provide that it shall be cause for immediate termination of
the tenancy of a public housing tenant if such tenant -
(A) is fleeing to avoid prosecution, or custody or
confinement after conviction, under the laws of the place from
which the individual flees, for a crime, or attempt to commit a
crime, which is a felony under the laws of the place from which
the individual flees, or which, in the case of the State of New
Jersey, is a high misdemeanor under the laws of such State; or
(2) )9(! is violating a condition of probation or parole
imposed under Federal or State law.
For purposes of paragraph (5),)10(! the term "drug-related criminal
activity" means the illegal manufacture, sale, distribution, use,
or possession with intent to manufacture, sell, distribute, or use,
of a controlled substance (as defined in section 802 of title 21).
(m) Reporting requirements; limitation
The Secretary shall not impose any unnecessarily duplicative or
burdensome reporting requirements on tenants or public housing
agencies assisted under this chapter.
(n) Notice to post office regarding eviction for criminal activity
When a public housing agency evicts an individual or family from
a dwelling unit for engaging in criminal activity, including
drug-related criminal activity, the public housing agency shall
notify the local post office serving that dwelling unit that such
individual or family is no longer residing in the dwelling unit.
(o) Public housing assistance for foster care children
In providing housing in low-income housing projects, each public
housing agency may coordinate with any local public agencies
involved in providing for the welfare of children to make available
dwelling units to -
(1) families identified by the agencies as having a lack of
adequate housing that is a primary factor -
(A) in the imminent placement of a child in foster care; or
(B) in preventing the discharge of a child from foster care
and reunification with his or her family; and
(2) youth, upon discharge from foster care, in cases in which
return to the family or extended family or adoption is not
available.
(p) Repealed. Pub. L. 105-276, title V, Sec. 519(b), Oct. 21, 1998,
112 Stat. 2561
(q) Availability of records
(1) In general
(A) Provision of information
Notwithstanding any other provision of law, except as
provided in subparagraph (C), the National Crime Information
Center, police departments, and other law enforcement agencies
shall, upon request, provide information to public housing
agencies regarding the criminal conviction records of adult
applicants for, or tenants of, covered housing assistance for
purposes of applicant screening, lease enforcement, and
eviction.
(B) Requests by owners of project-based section 8 [42 U.S.C.
1437f] housing
A public housing agency may make a request under subparagraph
(A) for information regarding applicants for, or tenants of,
housing that is provided project-based assistance under section
1437f of this title only if the housing is located within the
jurisdiction of the agency and the owner of such housing has
requested that the agency obtain such information on behalf of
the owner. Upon such a request by the owner, the agency shall
make a request under subparagraph (A) for the information. The
agency may not make such information available to the owner but
shall perform determinations for the owner regarding screening,
lease enforcement, and eviction based on criteria supplied by
the owner.
(C) Exception
A law enforcement agency described in subparagraph (A) shall
provide information under this paragraph relating to any
criminal conviction of a juvenile only to the extent that the
release of such information is authorized under the law of the
applicable State, tribe, or locality.
(2) Opportunity to dispute
Before an adverse action is taken with regard to assistance
under this subchapter on the basis of a criminal record, the
public housing agency shall provide the tenant or applicant with
a copy of the criminal record and an opportunity to dispute the
accuracy and relevance of that record.
(3) Fees
A public housing agency may be charged a reasonable fee for
information provided under paragraph (1). In the case of a public
housing agency obtaining information pursuant to paragraph (1)(B)
for another owner of housing, the agency may pass such fee on to
the owner initiating the request and may charge additional
reasonable fees for making the request on behalf of the owner and
taking other actions for owners under this subsection.
(4) Records management
Each public housing agency shall establish and implement a
system of records management that ensures that any criminal
record received by the public housing agency is -
(A) maintained confidentially;
(B) not misused or improperly disseminated; and
(C) destroyed, once the purpose for which the record was
requested has been accomplished.
(5) Confidentiality
A public housing agency receiving information under this
subsection may use such information only for the purposes
provided in this subsection and such information may not be
disclosed to any person who is not an officer, employee, or
authorized representative of the agency and who has a job-related
need to have access to the information in connection with
admission of applicants, eviction of tenants, or termination of
assistance. For judicial eviction proceedings, disclosures may be
made to the extent necessary. The Secretary shall, by regulation,
establish procedures necessary to ensure that information
provided under this subsection to a public housing agency is
used, and confidentiality of such information is maintained, as
required under this subsection. The Secretary shall establish
standards for confidentiality of information obtained under this
subsection by public housing agencies on behalf of owners.
(6) Penalty
Any person who knowingly and willfully requests or obtains any
information concerning an applicant for, or tenant of, covered
housing assistance pursuant to the authority under this
subsection under false pretenses, or any person who knowingly and
willfully discloses any such information in any manner to any
individual not entitled under any law to receive it, shall be
guilty of a misdemeanor and fined not more than $5,000. The term
"person" as used in this paragraph include )11(! an officer,
employee, or authorized representative of any public housing
agency.
(7) Civil action
Any applicant for, or tenant of, covered housing assistance
affected by (A) a negligent or knowing disclosure of information
referred to in this subsection about such person by an officer,
employee, or authorized representative of any public housing
agency, which disclosure is not authorized by this subsection, or
(B) any other negligent or knowing action that is inconsistent
with this subsection, may bring a civil action for damages and
such other relief as may be appropriate against any public
housing agency responsible for such unauthorized action. The
district court of the United States in the district in which the
affected applicant or tenant resides, in which such unauthorized
action occurred, or in which the officer, employee, or
representative alleged to be responsible for any such
unauthorized action resides, shall have jurisdiction in such
matters. Appropriate relief that may be ordered by such district
courts shall include reasonable attorney's fees and other
litigation costs.
(8) Definitions
For purposes of this subsection, the following definitions
shall apply:
(A) Adult
The term "adult" means 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.
(B) Covered housing assistance
The term "covered housing assistance" means -
(i) a dwelling unit in public housing;
(ii) a dwelling unit in housing that is provided
project-based assistance under section 1437f of this title,
including new construction and substantial rehabilitation
projects; and
(iii) tenant-based assistance under section 1437f of this
title.
(C) Owner
The term "owner" means, with respect to covered housing
assistance described in subparagraph (B)(ii), the entity or
private person (including a cooperative or public housing
agency) that has the legal right to lease or sublease dwelling
units in the housing assisted.
(r) Site-based waiting lists
(1) Authority
A public housing agency may establish procedures for
maintaining waiting lists for admissions to public housing
projects of the agency, which may include (notwithstanding any
other law, regulation, handbook, or notice to the contrary) a
system of site-based waiting lists under which applicants may
apply directly at or otherwise designate the project or projects
in which they seek to reside. All such procedures shall comply
with all provisions of title VI of the Civil Rights Act of 1964
[42 U.S.C. 2000d et seq.], the Fair Housing Act [42 U.S.C. 3601
et seq.], and other applicable civil rights laws.
(2) Notice
Any system described in paragraph (1) shall provide for the
full disclosure by the public housing agency to each applicant of
any option available to the applicant in the selection of the
project in which to reside.
(s) Authority to require access to criminal records
A public housing agency may require, as a condition of providing
admission to the public housing program or assisted housing program
under the jurisdiction of the public housing agency, that each
adult member of the household provide a signed, written
authorization for the public housing agency to obtain records
described in subsection (q)(1) of this section regarding such
member of the household from the National Crime Information Center,
police departments, and other law enforcement agencies.
(t) Obtaining information from drug abuse treatment facilities
(1) Authority
Notwithstanding any other provision of law other than the
Public Health Service Act (42 U.S.C. 201 et seq.), a public
housing agency may require each person who applies for admission
to public housing to sign one or more forms of written consent
authorizing the agency to receive information from a drug abuse
treatment facility that is solely related to whether the
applicant is currently engaging in the illegal use of a
controlled substance.
(2) Confidentiality of applicant's records
(A) Limitation on information requested
In a form of written consent, a public housing agency may
request only whether the drug abuse treatment facility has
reasonable cause to believe that the applicant is currently
engaging in the illegal use of a controlled substance.
(B) Records management
Each public housing agency that receives information under
this subsection from a drug abuse treatment facility shall
establish and implement a system of records management that
ensures that any information received by the public housing
agency under this subsection -
(i) is maintained confidentially in accordance with section
543 of the Public Health Service Act [42 U.S.C. 290dd-2];
(ii) is not misused or improperly disseminated; and
(iii) is destroyed, as applicable -
(I) not later than 5 business days after the date on
which the public housing agency gives final approval for an
application for admission; or
(II) if the public housing agency denies the application
for admission, in a timely manner after the date on which
the statute of limitations for the commencement of a civil
action from the applicant based upon that denial of
admission has expired.
(C) Expiration of written consent
In addition to the requirements of subparagraph (B), an
applicant's signed written consent shall expire automatically
after the public housing agency has made a final decision to
either approve or deny the applicant's application for
admittance to public housing.
(3) Prohibition of discriminatory treatment of applicants
(A) Forms signed
A public housing agency may only require an applicant for
admission to public housing to sign one or more forms of
written consent under this subsection if the public housing
agency requires all such applicants to sign the same form or
forms of written consent.
(B) Circumstances of inquiry
A public housing agency may only make an inquiry to a drug
abuse treatment facility under this subsection if -
(i) the public housing agency makes the same inquiry with
respect to all applicants; or
(ii) the public housing agency only makes the same inquiry
with respect to each and every applicant with respect to whom
-
(I) the public housing agency receives information from
the criminal record of the applicant that indicates
evidence of a prior arrest or conviction; or
(II) the public housing agency receives information from
the records of prior tenancy of the applicant that
demonstrates that the applicant -
(aa) engaged in the destruction of property;
(bb) engaged in violent activity against another
person; or
(cc) interfered with the right of peaceful enjoyment of
the premises of another tenant.
(4) Fee permitted
A drug abuse treatment facility may charge a public housing
agency a reasonable fee for information provided under this
subsection.
(5) Disclosure permitted by treatment facilities
A drug abuse treatment facility shall not be liable for damages
based on any information required to be disclosed pursuant to
this subsection if such disclosure is consistent with section 543
of the Public Health Service Act (42 U.S.C. 290dd-2).
(6) Option to not request information
A public housing agency shall not be liable for damages based
on its decision not to require each person who applies for
admission to public housing to sign one or more forms of written
consent authorizing the public housing agency to receive
information from a drug abuse treatment facility under this
subsection.
(7) Definitions
For purposes of this subsection, the following definitions
shall apply:
(A) Drug abuse treatment facility
The term "drug abuse treatment facility" means an entity that
-
(i) is -
(I) an identified unit within a general medical care
facility; or
(II) an entity other than a general medical care
facility; and
(ii) holds itself out as providing, and provides,
diagnosis, treatment, or referral for treatment with respect
to the illegal use of a controlled substance.
(B) Controlled substance
The term "controlled substance" has the meaning given the
term in section 802 of title 21.
(C) Currently engaging in the illegal use of a controlled
substance
The term "currently engaging in the illegal use of a
controlled substance" means the illegal use of a controlled
substance that occurred recently enough to justify a reasonable
belief that an applicant's illegal use of a controlled
substance is current or that continuing illegal use of a
controlled substance by the applicant is a real and ongoing
problem.
(8) Effective date
This subsection shall take effect on October 21, 1998, and
without the necessity of guidance from, or any regulation issued
by, the Secretary.
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