[Federal Register Volume 77, Number 60 (Wednesday, March 28, 2012)]
[Proposed Rules]
[Pages 18731-18738]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7341]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 982
[Docket No. FR-5453-P-01]
RIN 2577-AC86
Public Housing and Section 8 Programs: Housing Choice Voucher
Program: Streamlining the Portability Process
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend HUD's regulations governing
portability in the Housing Choice Voucher (HCV) program. Portability is
a feature of the HCV program that allows an eligible family with a
housing choice voucher to use that voucher to lease a unit anywhere in
the United States where there is a public housing agency (PHA)
operating an HCV program. The purpose of HUD's proposed changes to the
portability regulations is to clarify requirements already established
in the existing regulations and improve the process involved with
processing portability requests to enable PHAs to better serve families
and expand housing opportunities. It is HUD's intent to increase
administrative efficiencies by eliminating confusing and obscure
regulatory language in areas that are known to be troublesome. This
proposed rule attempts to balances the needs and interests of PHAs
while increasing family choice.
DATES: Comment Due Date: May 29, 2012.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW., Room 10276, Washington, DC 20410-0500. 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. 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.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
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 them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov Web site can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: 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. No Facsimile Comments. Facsimile (Fax) comments are not
acceptable.
Public Inspection of Public Comments. All properly submitted
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). Individuals with speech or hearing impairments
may access this number via TTY by calling the toll-free Federal Relay
Service at 800-877-8339. Copies of all comments submitted are available
for inspection and downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Laure Rawson, Director, Housing
Voucher and Management Operations Division, Office of Housing Choice
Vouchers, Department of Housing and Urban Development, 451 7th Street
SW., Room 4216, Washington, DC 20410-8000, telephone number 202-708-
0477 (this is not a toll-free number). Individuals with speech or
hearing impairments may access this number through TTY by calling the
toll-free Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
The HCV program is the Federal Government's largest program for
assisting very low-income families, the elderly, and the disabled to
afford decent, safe, and sanitary housing in the private market. The
HCV program is authorized by section 8(o) of the United States Housing
Act of 1937 (42 U.S.C. 1473f(o)) (1937 Act), and the HCV program
regulations are found in 24 CFR part 982.
Housing choice vouchers are administered locally by PHAs. PHAs
receive federal funds from HUD to administer the HCV program. A family
that is issued a housing choice voucher is responsible for finding a
suitable housing unit of the family's choice where the owner agrees to
rent under the program. This unit may include the family's current
residence. Rental units must meet minimum standards of health and
safety, as determined by the PHA and must also meet a reasonable rent
determination based on similar unassisted units. The maximum amount the
PHA can pay toward a unit is determined by the payment standard set
using the annual Fair Market Rents published by HUD. The PHA determines
the family's annual income to determine the amount that the family will
contribute toward rent, which is generally 30 percent of its adjusted
annual income. A housing subsidy is paid to the landlord directly by
the PHA on behalf of the participating family to pay the difference
between the payment standard and the tenant rent contribution. A key
feature of the HCV program is the mobility of the voucher assistance or
``portability.'' Section 8(r) of the 1937 Act provides that HCV
participants may choose a unit that meets program requirements anywhere
in the United States, provided that a PHA administering the tenant-
based program has jurisdiction over the area in which the unit is
located. The term ``portability'' refers to the process of leasing a
dwelling unit with tenant-based housing voucher assistance outside of
the jurisdiction of the PHA that initially issued the family its
voucher (the initial PHA). Currently, program regulations, found at 24
CFR 982.353 through 982.355, detail where a
[[Page 18732]]
family may move and the responsibilities of the initial PHA and the
receiving PHA (the PHA with jurisdiction over the area to which the
family desires to move). Situations have arisen during the time these
regulations have been in place that have caused HUD to identify several
issues with the potential to delay or impede the ability of families to
relocate while retaining their voucher. One of the main purposes of
this proposed rule is to make it easier for families with housing
vouchers to relocate to areas that may offer greater opportunities.
On March 2 and 3, 2010, the Office of Public and Indian Housing
convened a meeting among PHAs, representatives from PHA organizations
such as the Public Housing Authorities Directors Association, the
National Leased Housing Association, the National Association of
Housing and Redevelopment Officials, and Council of Large Public
Housing Authorities, along with HUD staff, to discuss portability.
Representatives of PHAs and industry organizations raised such issues
as: the difficulty in resolving payment issues between an initial PHA
and a receiving PHA; the ability of PHAs to absorb a high number of
families that seek to move to their jurisdiction; the coordination of
reporting between an initial PHA and a receiving PHA; and different
program requirements of PHAs in portability arrangements.\1\ This rule
addresses several of the issues raised at these meetings, as well as
issues identified by HUD in its review of the voucher regulations.
Through amendments to the HCV program regulations, this rule proposes
to: (1) More clearly delineate the roles of initial and receiving PHAs,
making the portability process more certain; (2) improve accountability
in portability billing arrangements between PHAs; and (3) increase
family choice and reduce burden in locating suitable housing.
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\1\ A summary of these meetings can be found on HUD's Web site
at http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/hcv under ``2010 Meeting Summary-
Report on the Convening Session of SEMAP and Portability.''
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II. This Proposed Rule--Section-by-Section Review and Issues for
Comment
Definitional Changes (Sec. 982.4)
After receiving a voucher, and particularly in the case of
portability moves, a family has a limited window of time to locate
suitable housing. After a family has located a unit, the family is
required to submit a request for PHA approval of the tenancy.
Currently, a PHA has a choice in adopting a policy that would allow for
suspension of the voucher term when the family submits a request for
tenancy approval. This proposed rule would revise the definition of
``suspension'' in Sec. 982.4 to remove the phrase ``for such period as
determined by the PHA'' from the definition and to replace it with the
``stopping of the clock'' from the date on which the family submits a
request for PHA approval of the tenancy, until the date the PHA
approves or denies the request. This change would require PHAs to stop
the clock on the family's voucher in order to give the family the
maximum time possible to locate a suitable unit and remove potential
barriers to mobility.
Suspension of Voucher Term (Sec. 982.54)
This section of the proposed rule removes any reference to PHA
discretion regarding ``suspension'' based on the revised definition of
``suspension.''
Mandatory Voucher Suspension (Sec. 982.303)
Under the current regulation at Sec. 982.303(c), a PHA may suspend
the term of the voucher when a family submits a request for tenancy
approval. The proposed rule would mandate suspension for all vouchers
issued, and the suspension would last from the date the family submits
the request for tenancy approval until the PHA approves or denies such
request. Without this suspension, families may lose valuable time on
their voucher while waiting for the PHA to complete the Housing Quality
Standards (HQS) inspection requirements and to make a determination of
approval or denial of the tenancy. This proposed change would give
families the maximum time possible to locate a suitable unit and
removes potential barriers to mobility.
Notification Requirement Before Denying Moves for Insufficient Funding
(Sec. 982.354)
The regulations currently allow a PHA to deny a family permission
to move if the PHA does not have sufficient funding. In the proposed
rule, HUD would require a PHA to provide written notification to the
local HUD Field Office when the PHA determines it is necessary to deny
moves based on a determination of insufficient funding. The additional
notification required by this proposed rule would help ensure that a
PHA has considered the circumstances of each move prior to determining
that insufficient funding is available.
Portability Processing Procedures (Sec. 982.355)
If a family chooses to exercise portability under the proposed
rule, the initial PHA administering the family's voucher would be
required to contact the receiving PHA to determine if the receiving PHA
will bill or absorb the voucher. The proposed rule would require that
the communication by both PHAs be by email or other confirmed delivery
method. HUD encourages PHAs to communicate this information via email
in order to expedite the processing of the families' request. The
confirmed delivery method is important in documenting the communication
between PHAs. HUD would not prescribe a specific form to be used for
this communication. This communication and documentation requirement
redistributes the administrative burden on the front-end of a family
move and prevents future disputes between PHAs regarding the billing of
individual families. Further, this requirement will prevent families
from engaging in costly interjurisdictional moves prior to a final
determination of receiving assistance in their new jurisdiction.
When a receiving PHA agrees to absorb a family, the initial PHA
often relies on this agreement and plans its annual budget accordingly.
When a receiving PHA reverses this decision later, the impact on the
family can be devastating. When an initial PHA has insufficient funds
to cover the cost of the voucher in the receiving PHA's jurisdiction,
the family is required to relocate to the initial jurisdiction or
relinquish assistance entirely. Under the proposed rule, if a receiving
PHA decides to absorb the family, the receiving PHA cannot reverse its
decision at a later date without consent of the initial PHA. This
requirement will provide PHAs with stable, consistent information
necessary to plan financially and to better serve families.
HUD also adds clarifying language to this section of the rule
stating that a receiving PHA cannot refuse to assist incoming portable
families as is currently required by Sec. 982.355(a). HUD may
determine in certain instances that a PHA is not required to accept
incoming portable families, such as a PHA in a declared disaster area.
However, the PHA must have approval in writing from HUD before refusing
any incoming portable families. Although HUD anticipates that refusals
and thus the need for prior approval will be uncommon, such prior
approval helps HUD to monitor and ensure that any refusal by a PHA to
accept incoming
[[Page 18733]]
portable families is documented and approved.
Term of Receiving PHA Voucher (Sec. 982.355)
HUD is proposing to add an additional 30 days to the term of the
voucher for portability moves to accommodate the additional time that
the portability process requires. For example, under the current
regulations, the time period when the family is waiting to attend a
briefing session at the receiving PHA is counting against the family's
initial voucher expiration date, thus reducing the family's time to
locate a unit.
Administrative Fee (Sec. 982.355)
Under current regulation, when a voucher is in a portability
billing arrangement between the initial PHA and receiving PHA, the
initial PHA must pay the receiving PHA 80 percent of its administrative
fee for each month the family receives assistance at the receiving PHA.
The proposed rule would set the maximum amount the initial PHA is
required to pay at 100 percent of the receiving PHA's administrative
fee rate. This change prevents a receiving PHA with a lower
administrative fee from profiting from an initial PHA with a higher
administrative fee. Under the proposed rule, a receiving PHA will be
able to more fairly cover the costs of administering the voucher.
Mandatory Absorption of Portability Vouchers (Sec. 982.355(e))
In order to help ensure that a PHA utilizes available budget
authority to the maximum extent possible, and to reduce the number of
portability billing arrangements between agencies, the proposed rule
would require a PHA that: (1) Is utilizing less than 95 percent of its
available budget authority, and (2) has a leasing rate of less than 95
percent, to absorb incoming portability families until the percentage
of available budget authority used or the leasing rate is at least 95
percent. The available budget authority includes the available Housing
Assistance Payment (HAP) Net Restrict Assets, or NRA.
III. Specific Issues for Comment
While HUD solicits and welcomes comments on all aspects of this
rule, HUD specifically seeks comment on the following:
1. Portability in the voucher program has been a subject of
significant interest among PHAs, HUD, and others interested in
effective administration of the voucher program and family mobility
opportunities. HUD is aware of the additional administrative burden
that portability billing arrangements place on PHAs, and HUD is
interested in finding ways to reduce or eliminate portability billing
arrangements between agencies. In the past, some PHAs suggested that
HUD immediately transfer funds from the initial PHA consolidated Annual
Contributions Contract (ACC) to the receiving PHA consolidated ACC, in
order to instantly eliminate portability billing. Others suggested a
sharing of costs by the initial and receiving PHA whereby the initial
PHA would pay to the receiving PHA no more than the family's subsidy at
the initial PHA location.
HUD specifically invites comments that offer proposals to design
the portability feature of the HCV program that would eliminate or
minimize the administrative burdens associated with the portability
feature for PHAs and families.
2. Under the current portability regulations, a family that chooses
to move using portability must pass the screening criteria at the
receiving PHA, although the family may have been a voucher recipient at
the initial PHA for years. This is a problem for families when the
receiving PHA has more stringent criteria than the initial PHA. For
example, a family that includes an individual with a criminal
background, and is acceptable under the initial PHA's admission
policies (e.g., the incident occurred more than 5 years ago), may
decide to move using portability and request a voucher from the
receiving PHA. Under that scenario, while the family is searching for
new housing, the receiving PHA might notify the family that it did not
pass the PHA's criminal background screening criteria. At that point,
the family had already notified its landlord of its intent to vacate,
and its unit was rented to another family. As a result, in order to
keep its assistance, the family would have to move back to the initial
PHA's jurisdiction and locate a different available unit in the initial
PHA's jurisdiction.
HUD is seeking comments on ways to prevent this type of hardship on
families and possible ways to address this issue such as prohibiting
screening by the receiving PHA at the time of portability or
standardizing policies for portability moves.
3. The regulations at Sec. 982.301 require that the PHA provide a
briefing to families upon selection to participate in the HCV program.
Currently, Sec. 982.301(b)(3) requires that the briefing to families
living in high-poverty census tracts include an explanation of the
advantages of moving to an area that does not have a high concentration
of poor families. HUD is seeking comment on whether this information
should be provided to all families selected to participate in the HCV
program, and not just those families living in high-poverty census
tracts.
Further, HUD seeks comments on whether the briefing should be
revised to highlight the factors and trade-offs that a family should
consider in terms of where they wish to lease a unit with voucher
assistance.\1\ These factors include but are not limited to: employment
opportunities; safety, health and environmental amenities; public
transportation; the quality of schools; access to social services; the
quality of housing; and proximity to family and friends. HUD seeks
comment on the content and emphases of the briefings.
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\1\ See http://www.nber.org/mtopublic/for a comprehensive
database on MTO research, which analyzes the effects of families'
moving with vouchers. Other good references would be: Galvez, M.M.
(2010). What Do We Know About Housing Choice Voucher Program
Location Outcomes: A Review of Recent Litterature. What Works
Collaborative--Urban Institute, see http://www.urban.org/url.cfm?ID=412218. Phillip Tegeler, Mary Cunningham, and Margery
Austin Turner, editors (2005). Keeping the Promise: Preserving and
Enhancing Housing Mobility in the Section 8 Housing Choice Voucher
Program: Final Conference Report of the Third National Conference on
Housing Mobility.
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4. The current regulations at 24 CFR 982.301(b)(11) require a PHA
to provide families with a list of landlords or other parties known to
the PHA who may be willing to lease a unit to the family or help the
family find a unit. HUD is interested in learning if the list of
landlords and other parties is helpful for families, or if HUD should
remove this requirement in the revised rule. HUD is requesting comments
regarding the focus of such information and whether additional
information on areas of opportunity or neighborhoods would be more
beneficial for families.
5. When a family requests to port and there is more than one PHA in
the family's desired location, the current regulations at 24 CFR
982.355(b) require the initial PHA to select the receiving PHA. HUD is
instead considering allowing the family to select the receiving PHA
based on the PHA that best meets its needs. For example, some PHAs
offer homeownership programs or Family Self Sufficiency (FSS) programs
that a family may be interested in participating, or the family may
want to select a PHA based on the scores of the schools in the PHA's
jurisdiction. The initial PHA would be responsible for informing the
family of the PHAs that serve the area and providing the contact
information for those PHAs, but would
[[Page 18734]]
not be responsible for determining what options or services each PHA
offers.
6. In this proposed rule, HUD is proposing mandatory absorptions of
portability vouchers when a PHA is utilizing less than 95 percent of
its available budget authority and has a leasing rate of less than 95
percent. It is HUD's position that this approach would encourage PHAs
to utilize their available budget authority while also reducing the
number of portability billing arrangements. HUD is seeking comments as
to whether 95 percent is an appropriate threshold for all PHAs or if
HUD should consider an alternative scale based on the size of the PHA
or other factors.
IV. Findings and Certifications
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made whether a regulatory action is significant
and therefore, subject to review by the Office of Management and Budget
(OMB) in accordance with the requirements of the order. Executive Order
13563 (Improving Regulations and Regulatory Review) directs executive
agencies to analyze regulations that are ``outmoded, ineffective,
insufficient, or excessively burdensome, and to modify, streamline,
expand, or repeal them in accordance with what has been learned.''
Executive Order 13563 also directs that, where relevant, feasible, and
consistent with regulatory objectives, and to the extent permitted by
law, agencies are to identify and consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public. This rule was determined to be a ``significant regulatory
action'' as defined in section 3(f) of Executive Order (although not an
economically significant regulatory action, as provided under section
3(f)(1) of the Executive Order).
This proposed rule would amend HUD's regulations governing
portability in the HCV program. The proposed regulatory changes would
streamline the portability process and help enable initial and
receiving PHAs to better serve families and expand housing
opportunities. HUD's analysis indicates that these regulatory
amendments will not have an economic effect of greater than $100
million and thus do not require a regulatory impact analysis. The
proposed rule, however, would yield certain non-tangible benefits. The
findings of HUD's analysis are summarized below:
1. Benefits of proposed rule. The HCV portability policy helps
ensure that families have the opportunity to relocate in order to
pursue increased or new employment opportunities or to gain access to
higher-performing schools for their children. An efficient portability
process also helps ensure that victims of domestic violence and
stalking have access to the resources necessary to relocate to a safe,
stable home away from an abuser.
Opportunity moves have important benefits to housing choice voucher
families. Research from HUD's moving to opportunity (MTO) demonstration
and from the Gautreaux desegregation program in Chicago has shown that
families with children moving from communities of high-poverty
concentration to low-poverty communities tend to perform better in
school (e.g., dropout rates are lower, grades are better, college
attendance rates are higher). In addition, families report benefiting
greatly from reduced crime and greater employment opportunities. It is
expected that the proposed rule will remove potential barriers to
mobility. Some research indicates that families often use their
vouchers to move to better opportunities, including employment
opportunities.
2. Costs of proposed rule. HUD does not expect that the portability
billing arrangements proposed by this rule will place any additional
administrative burden on PHAs.
Portability may add to the cost of the HCV program. The fiscal year
(FY) 2012 appropriations for the Department provide a set-aside of $103
million of HAP funds for additional renewal funding to be provided to
PHAs under certain circumstances.
3. Transfers. While the fiscal impact of the proposed rule is
marginal, it does have the potential to create substantial financial
transfers among PHAs.
Mandatory absorptions. In this proposed rule, HUD is proposing
mandatory absorptions of portability vouchers when a PHA is utilizing
95 percent or less of its available budget authority and has a leasing
rate of less than 95 percent. It is HUD's position that this approach
would help ensure that PHAs are utilizing their available budget
authority to the maximum extent possible while also reducing the number
of portability billing arrangements.
Administrative Fee. Under current regulation, when a voucher is in
a portability billing arrangement between the initial PHA and receiving
PHA, the initial PHA must pay the receiving PHA 80 percent of its
administrative fee for each month that the family receives assistance
at the receiving PHA. Removal of potential barriers to mobility is
expected to increase the number of portability vouchers and thus
increase the amount of administrative fees transfers between PHAs.
The proposed rule would set the maximum amount that the initial PHA
is required to pay at 100 percent of the receiving PHA's administrative
fee rate. In other words, the initial PHA would reimburse the receiving
PHA for the lesser of: (1) 80 percent of the initial PHA's ongoing fee,
or (2) the full amount of the receiving PHA's administrative fee. This
change would eliminate the incentive for a receiving PHA with a lower
administrative fee from billing an initial PHA with a higher
administrative fee in order to receive a higher administrative fee than
it would normally earn from HUD. This action should reduce portability
billings for those PHAs for whom 80 percent of the initial PHA's fee is
more than 100 percent of their own administrative fee. For
illustration, assume that a receiving PHA's administrative fee is $60.
Under current rules, if a family moves to the receiving PHA's
jurisdiction from an initial PHA that receives $100 in administrative
fees for a housing voucher, the receiving PHA may bill the initial PHA
for $80, which is $20 more than the PHA would earn if it simply
absorbed the voucher. Under the proposed rule, the receiving PHA will
receive $60 regardless of whether the receiving PHA bills the initial
PHA or absorbs the family into its own program.
The full economic analysis is available for review at
www.regulations.gov. The docket file for this rule is available for
public inspection in 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
the HUD Headquarters building, please schedule an appointment to review
the docket file by calling the Regulations Division at 202-402-3055
(this is not a toll-free number). Individuals with speech or hearing
impairments may access this number via TTY by calling the toll-free
Federal Relay Service at 800-877-8339.
Information Collection Requirements
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In
accordance with the Paperwork Reduction Act, an agency may not conduct
or sponsor, and a person is not
[[Page 18735]]
required to respond to, a collection of information, unless the
collection displays a currently valid OMB control number.
The burden of the information collections in this proposed rule is
estimated as follows:
Reporting and Recordkeeping Burden
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Estimated
Number of average time Estimated
Section reference Number of responses per for annual burden
respondents respondent requirement (in hours)
(in hours)
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982.354(e)...................................... 100 1 1.00 100
982.355(d)...................................... 2,450 20 .25 12,250
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Totals...................................... 2,550 21 1.25 12,350
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In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology; e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this rule. Comments must refer
to the proposal by name and docket number (FR-5453) and be sent to:
HUD Desk Officer, Office of Management and Budget, New Executive Office
Building, Washington, DC 20503, Fax number: (202) 395-6947
and
Reports Liaison Officer, Office of the Chief Information Officer,
Department of Housing and Urban Development, 451 7th Street SW.,
Washington, DC 20410-8000.
Interested persons may submit comments regarding the information
collection requirements 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
comments, ensures their timely receipt by HUD, and enables HUD to make
them 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 the instructions provided on that site to
submit comments electronically.
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 government,
or the private sector within the meaning of UMRA.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule will not have federalism
implications and would not impose substantial direct compliance costs
on state and local governments or preempt state law within the meaning
of the Executive Order.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) generally requires
an agency to conduct a regulatory flexibility analysis of any rule
subject to notice and comment rulemaking requirements, unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The proposed rule is
solely concerned with the portability feature of the voucher program.
There are currently approximately 2,800 small PHAs (i.e., PHAS with
less than 250 public housing units or vouchers), all of which will be
subject to the proposed rule. Although the proposed rule will impact
these PHAs, the impact will not be significant. As stated previously in
this preamble, through the amendments to the HCV regulations provided
in this rule, HUD proposes to reduce the administrative burden of
portability for both PHAs and families, reduce portability billing
arrangements between PHAs, and ensure maximum family choice in locating
suitable housing. Through this rule, HUD strives to reduce
administrative burden for all PHAs large or small. As explained more
fully above in the ``Executive Order 12866'' section of this preamble,
the benefits of the proposed regulatory changes will largely outweigh
the administrative and compliance costs to PHAs. Accordingly, the
undersigned certifies that this rule will not have a significant
economic impact on a substantial number of small entities.
Notwithstanding HUD's determination that this rule will not have a
significant economic impact on a substantial number of small entities,
HUD specifically invites comments regarding less burdensome
alternatives to this rule that will meet HUD's objectives as described
in this preamble.
Environmental Impact
This proposed rule does not direct, provide for assistance or loan
and mortgage insurance for, or otherwise govern or regulate, real
property acquisition, disposition, leasing, rehabilitation, alteration,
demolition, or new construction, or establish, revise, or provide for
standards for construction or construction materials, manufactured
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule
is categorically excluded from environmental review under the
[[Page 18736]]
National Environmental Policy Act of 1969 (42 U.S.C. 4321).
List of Subjects in 24 CFR Part 982
Grant programs--housing and community development, Grant programs--
Indians, Indians, Public housing, Rent subsidies, Reporting and
recordkeeping requirements.
Accordingly, HUD proposes to amend 24 CFR part 982, as follows:
PART 982--SECTION 8 TENANT BASED ASSISTANCE: HOUSING CHOICE VOUCHER
PROGRAM
1. The authority citation for 24 CFR part 982 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
2. In Sec. 982.4(b), revise the definition of ``Suspension'' to
read as follows:
Sec. 982.4 Definitions.
* * * * *
Suspension. Stopping the clock on the term of a family's voucher
from the date that the family submits a request for PHA approval of the
tenancy, until the date the PHA approves or denies the request.
* * * * *
3. Section 982.54 is amended as follows:
a. Revise paragraphs (d)(2) and (d)(19);
b. Remove paragraph (d)(20); and
c. Redesignate paragraphs (d)(21) through (d)(23), as paragraphs
(d)(20) through (d)(22), respectively, to read as follows:
Sec. 982.54 Administrative plan.
* * * * *
(d) * * *
(2) Issuing or denying vouchers, including PHA policy governing the
voucher term and any extensions of the voucher term. If the PHA decides
to allow extensions of the voucher term, the PHA administrative plan
must describe how the PHA determines whether to grant extensions, and
how the PHA determines the length of any extension.
* * * * *
(19) Restrictions, if any, on the number of moves by a participant
family (see Sec. 982.354(c)); and
* * * * *
4. Revise Sec. 982.303 (c), to read as follows:
Sec. 982.303 Term of voucher.
* * * * *
(c) Suspension of term. The PHA must provide for suspension of the
initial or any extended term of the voucher from the date that the
family submits a request for PHA approval of the tenancy until the date
the PHA approves or denies the request.
* * * * *
5. Section Sec. 982.353 is amended as follows:
a. Remove the word ``or'' from paragraph (c)(1) and in its place
add the word ``nor'';
b. Revise paragraphs (c)(3), (d)(2), and (f); and
c. Remove paragraph (d)(3), to read as follows:
Sec. 982.353 Where family can lease a unit with tenant-based
assistance.
* * * * *
(c) * * *
(3) If the initial PHA approves, the family may lease a unit
outside the PHA jurisdiction under portability procedures.
(d) * * *
(2) If a portable family is a participant in the initial PHA
Section 8 tenant-based program, income eligibility is not redetermined
when the family moves to the receiving PHA program under portability
procedures.
* * * * *
(f) Freedom of choice. The PHA may not directly or indirectly
reduce the family's opportunity to select among available units, except
as provided in paragraph (a) of this section, or elsewhere in this part
982 (e.g., prohibition on the use of ineligible housing, housing not
meeting HQS, or housing for which the rent to owner exceeds a
reasonable rent). However, the PHA must provide families the
information required in Sec. 982.301 for both the oral briefing and
the information packet to ensure that they have the information they
need to make an informed decision on their housing choice.
6. Redesignate Sec. 982.314 as Sec. 982.354, and amend newly
designated Sec. 982.354 as follows:
a. Revise paragraphs (c)(1), (c)(2), and (e)(1);
b. Remove paragraphs (c)(3) and (d)(1); and
c. Redesignate paragraph (d)(2) as paragraph (d), to read as
follows:
Sec. 982.354 Move with continued tenant-based assistance.
* * * * *
(c) How many moves. (1) A participant family may move with
continued assistance under the program, either inside the PHA
jurisdiction, or under the portability procedures (See Sec. 982.353)
in accordance with the PHA's policies.
(2) Consistent with applicable civil rights laws and regulations,
the PHA may establish policies that:
(i) Prohibit any move by the family during the initial lease term;
and
(ii) Prohibit more than one move by the family during any one-year
period.
* * * * *
(e) When PHA may deny permission to move. (1) The PHA may deny
permission to move if the PHA does not have sufficient funding for
continued assistance. The PHA must provide written notification to the
local HUD Office upon determining it is necessary to deny moves to a
higher-cost unit based on insufficient funding.
* * * * *
7. Section 982.355 is revised as follows:
Sec. 982.355 Portability: Administration by initial and receiving
PHA.
(a) When a family moves under portability (in accordance with Sec.
982.353(b)) to an area outside the initial PHA jurisdiction, the
receiving PHA must administer assistance for the family if a PHA with a
tenant-based program has jurisdiction in the area where the unit is
located.
(b) A receiving PHA cannot refuse to assist incoming portable
families or direct them to another neighboring PHA for assistance. HUD
may determine in certain instances that a PHA is not required to accept
incoming portable families, such as a PHA in a declared disaster area.
However, the PHA must have approval in writing from HUD before refusing
any incoming portable families.
(c) Portability procedures. The following portability procedures
must be followed:
(1) When the family decides to use the voucher outside of the PHA
jurisdiction, the family must notify the initial PHA of its desire to
relocate and must specify the location where it wants to live.
(2) The family must notify the owner of its desire to move in
accordance with its lease.
(3) The initial PHA must determine the family's eligibility to move
in accordance with Sec. Sec. 982.353 and 982.354.
(4) The initial PHA must contact the receiving PHA via email or
other confirmed delivery method prior to approving the family's request
to move in order to determine if the voucher will be absorbed or billed
by the initial PHA. The receiving PHA must advise the initial PHA in
writing via email or other confirmed delivery method of its decision.
(5) If the receiving PHA notifies the initial PHA that it will
absorb the voucher, the receiving PHA cannot reverse its decision at a
later date without consent of the initial PHA.
[[Page 18737]]
(6) If the receiving PHA will bill the initial PHA for the
portability voucher and the cost of the HAP will increase due to the
move, the initial PHA may deny the move in accordance with Sec.
982.354 (e)(1).
(7) If a billing arrangement is approved by the initial PHA or if
the voucher is to be absorbed by the receiving PHA, the initial PHA
must issue the family a voucher and advise the family how to contact
and request assistance from the receiving PHA.
(8) The initial PHA must promptly notify the receiving PHA to
expect the family. The initial PHA must give the receiving PHA the Form
HUD-52665, the most recent HUD
Form-50058 (Family Report) for the family, and all related
verification information.
(9) The family must promptly contact the receiving PHA in order to
be informed of the receiving PHA's procedures for incoming portable
families and comply with these procedures. The family's failure to
comply may result in denial or termination of the receiving PHA's
voucher.
(10) The receiving PHA does not redetermine income eligibility for
a participant family. However, for a portable family that was not
already receiving assistance in the PHA tenant-based program, the
initial PHA must determine whether the family is income-eligible for
admission to the receiving PHA voucher program.
(11) When a receiving PHA assists a family under portability,
administration of the voucher must be in accordance with the receiving
PHA's policies. This requirement also applies to policies of Moving to
Work agencies. The receiving PHA procedures and preferences for
selection among eligible applicants do not apply to the portable
family, and the receiving PHA waiting list is not used.
(12) If the receiving PHA opts to conduct a new reexamination for a
current participant family, the receiving PHA may not delay issuing the
family a voucher or otherwise delay approval of a unit.
(13) The receiving PHA must determine the family unit size for the
portable family, and base its determination on the subsidy standards of
the receiving PHA.
(14) The receiving PHA must issue a voucher to the family. The term
of the receiving PHA voucher must be 30 days after the expiration date
of the initial PHA voucher. If the voucher expired before the family
arrives at the receiving PHA, the receiving PHA must contact the
initial PHA to determine if it will extend the voucher.
(15) Once the receiving PHA issues the portable family a voucher,
the receiving PHA's policies on extensions of the voucher term apply.
The receiving PHA must notify the initial PHA of any extensions granted
to the term of the voucher.
(16) The family must submit a request for tenancy approval to the
receiving PHA during the term of the receiving PHA voucher. As required
in Sec. 982.303, if the family submits a request for tenancy approval
during the term of the voucher, the PHA must suspend the term of that
voucher.
(17) The receiving PHA must promptly notify the initial PHA if the
family has leased an eligible unit under the program, or if the family
fails to submit a request for tenancy approval for an eligible unit
within the term of the voucher.
(18) At any time, either the initial PHA or the receiving PHA may
make a determination to deny or terminate assistance to the family in
accordance with Sec. 982.552 and 982.553.
(d) Absorption by the receiving PHA. (1) If funding is available
under the consolidated ACC for the receiving PHA voucher program on the
effective date of the HAP contract, the receiving PHA may absorb the
family into the receiving PHA voucher program. After absorption, the
family is assisted with funds available under the consolidated ACC for
the receiving PHA tenant-based program.
(2) HUD may require that the receiving PHA absorb all or a portion
of the portable families.
(3) HUD may provide financial or nonfinancial (or both) incentives
to PHAs that absorb portability vouchers.
(4) PHAs that are utilizing less than 95 percent of their available
budget authority and have a leasing rate of less than 95 percent are
required to absorb incoming portable families until the percentage of
available budget authority used or the leasing rate is at least 95
percent. The available budget authority includes the available HAP Net
Restrict Assets, or NRA.
(e) Portability billing. (1) To cover assistance for a portable
family that was not absorbed in accordance with paragraph (d) of this
section, the receiving PHA may bill the initial PHA for housing
assistance payments and administrative fees.
(2) The initial PHA must promptly reimburse the receiving PHA for
the full amount of the housing assistance payments made by the
receiving PHA for the portable family. The amount of the housing
assistance payment for a portable family in the receiving PHA program
is determined in the same manner as for other families in the receiving
PHA program.
(3) The initial PHA must promptly reimburse the receiving PHA for
the lesser of 80 percent of the initial PHA ongoing administrative fee
or the full amount of the receiving PHA's administrative fee for each
unit month that the family receives assistance under the tenant-based
program from the receiving PHA. The receiving PHA cannot bill the
initial PHA for more than 100 percent of its own administrative fee. If
both PHAs agree, the PHAs may negotiate a different amount of
reimbursement.
(4) When a portable family moves out of the tenant-based program of
a receiving PHA that has not absorbed the family, the PHA in the new
jurisdiction to which the family moves becomes the receiving PHA, and
the first receiving PHA is no longer required to provide assistance for
the family.
(5) HUD may reduce the administrative fee to an initial or
receiving PHA if the PHA does not comply with HUD portability
requirements.
(6) In administration of portability, the initial PHA and the
receiving PHA must comply with financial procedures required by HUD,
including the use of HUD-required billing forms. The initial and
receiving PHA must also comply with billing and payment deadlines under
the financial procedures.
(7) A PHA must manage the PHA tenant-based program in a manner that
ensures that the PHA has the financial ability to provide assistance
for families that move out of the PHA program under the portability
procedures that have not been absorbed by the receiving PHA, as well as
for families that remain in the PHA program.
(f) Portability funding. (1) HUD may transfer units and funds for
assistance to portable families to the receiving PHA from funds
available under the initial PHA ACC.
(2) HUD may provide additional funding (e.g., funds for incremental
units) to the initial PHA for funds transferred to a receiving PHA for
portability purposes.
(3) HUD may provide additional funding (e.g., funds for incremental
units) to the receiving PHA for absorption of portable families.
(4) HUD may require the receiving PHA to absorb portable families.
(g) Portability and Project-Based Assistance. (1) Provisions on
portability do not apply to the Project-Based Voucher program.
(2) A family that is porting into a receiving PHA's jurisdiction
may only receive a tenant-based voucher or
[[Page 18738]]
homeownership assistance. In order for a tenant-based voucher holder to
be housed in a PBV unit, the family would have to apply to the
receiving PHA's PBV program and give up its tenant-based voucher prior
to being housed in the PBV unit.
(h) Portability and special purpose vouchers. (1) The initial PHA
must submit the codes used for special purpose vouchers on the Form
HUD-50058, Family Report, and the receiving PHA must maintain the codes
on the Family Report, as long as they choose to bill the initial PHA.
(2) In cases where HUD has established alternative program
requirements for special purpose vouchers, such as the HUD-Veterans
Affairs Supportive Housing (VASH) vouchers, both the initial and
receiving PHAs must administer the vouchers in accordance with HUD
established policy (i.e., the most recent HUD-VASH program operating
requirements).
Dated: March 2, 2012.
Sandra B. Henriquez,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 2012-7341 Filed 3-27-12; 8:45 am]
BILLING CODE 4210-67-P