[Federal Register Volume 61, Number 180 (Monday, September 16, 1996)]
[Rules and Regulations]
[Pages 48736-48787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22864]
[[Page 48735]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 91 and 92
_______________________________________________________________________
HOME Investment Partnerships Program: Final Rule
Federal Register / Vol. 61, No. 180 / Monday, September 16, 1996 /
Rules and Regulations
[[Page 48736]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 91 and 92
[Docket No. FR-3962-F-02]
RIN 2501-AC06
Office of the Secretary; HOME Investment Partnerships Program:
Final Rule
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule sets forth regulations to implement the HOME
Investment Partnerships Program (the HOME program). The HOME program
provides grants to States, units of general local government,
consortia, and insular areas to implement local housing strategies
designed to increase homeownership and affordable housing opportunities
for low- and very low-income Americans.
EFFECTIVE DATE: October 16, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Kolesar, Director, Program Policy
Division, Office of Affordable Housing Programs, Room 7162, Department
of Housing and Urban Development, 451 Seventh Street, SW, Washington,
DC 20410, telephone number (202) 708-2470 (this is not a toll-free
number). A telecommunications device for hearing- and speech-impaired
persons (TTY) is available at 1-800-877-8339 (Federal Information Relay
Service).
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Background
The HOME Investment Partnerships Act (the HOME Act) (Title II of
the Cranston-Gonzalez National Affordable Housing Act) was signed into
law on November 28, 1990 (Pub. L. 101-625), and created the HOME
Investment Partnerships Program that provides funds to expand the
supply of affordable housing for very low-income and low-income
persons. Interim regulations for the HOME Investment Partnerships
Program were first published on December 16, 1991 (56 FR 65313) and are
codified at 24 CFR part 92.
The original statute has been amended three times since enactment.
The Housing and Community Development Act of 1992 (HCDA 1992) (Pub. L.
102-550, approved October 28, 1992) included a substantial number of
amendments to the HOME Program. These amendments were implemented in
rules published on December 22, 1992 (57 FR 60960), June 23, 1993 (58
FR 34130), and April 19, 1994 (59 FR 18626). The HUD Demonstration Act
(Pub. L. 103-120, approved October 27, 1993) provided additional
authorization for HOME Program technical assistance. The Multifamily
Housing Property Disposition Reform Act of 1994 (MHPDRA) (Pub. L. 103-
233, approved April 11, 1994) included an additional number of
amendments to the HOME Program. These amendments were implemented in a
rule published on August 26, 1994 (59 FR 44258).
A proposed rule (60 FR 36012) to modify the HOME allocation formula
and an interim rule (60 FR 36020) with clarifying changes to the HOME
regulation and a request for additional comments before the issuance of
a final rule were published on July 12, 1995. The proposed rule was
issued as an interim rule on January 23, 1996 (61 FR 1824). Finally, on
March 6, 1996 (61 FR 9036), an interim rule making a number of
streamlining amendments to the HOME regulation was published.
The preamble to the July 12, 1995 interim rule solicited comments
on various specific policy issues, as well as on any other aspect of
the HOME regulation, in anticipation of preparing a final rule. This
rule addresses the comments that were received, and makes the interim
HOME regulation a final rule.
II. Summary of Comments and Responses
Subpart A--General
The Department is appreciative of all the public comment on both
the proposed and interim rules published on July 12, 1995. Thirty seven
(37) comments were received on the interim rule and twenty-one (21)
comments were received on the proposed rule from State and local
participating jurisdictions, nonprofit developers, public interest
groups and community and nonprofit associations. This rule also
furthers goals of reinventing government by incorporating public input
in rulemaking and clarifying statutory language. The Department has
reviewed every section of the program rules and believes that the rule
has been substantially reinvented to be clearer and more user friendly.
The Department in a succession of program rules has attempted to
make the program rules more simple, and easier to understand and
administer in adherence with the principles of reinventing government.
The program experience of State and local participating jurisdictions
has informed and shaped the program rules in many areas such as the
recapture/resale provisions for new homebuyers, the nature and timing
of match, the targeting and operation of tenant-based rental
assistance.
Fifteen comments were received on general policy. Twelve commenters
supported the changes in the seventh interim rule and the growing
flexibility and simplification of the HOME program. They were pleased
with the open dialogue enjoyed with HUD staff in working out the
technical details, as well as with the opportunity to comment on the
entire body of regulations. One commenter found HOME to be flexible,
responsive to local needs, and fostering true public/private/community
collaboration. Another stated that HOME is now the single most
important and used low-income housing program. However, this commenter
was also concerned that HOME funds were being substituted for State and
local funds and requested that the HOME rule specifically prohibit
this.
Three commenters felt that HOME was in need of major significant
improvement, although they acknowledged that most of the needed changes
were statutory. One commenter stated that the abundant and burdensome
requirements do not provide an avenue for creative solutions to
affordable housing. Another commenter was increasingly concerned that
the original notion of a ``housing block grant'' with significant
flexibility to support locally designed initiatives is being lost.
Furthermore, the commenter noted that existing HOME restrictions are
not compatible with those under the Low Income Housing Tax Credit or
the Section 8 Certificate and Voucher programs.
Among the statutory requirements identified as particularly
burdensome by commenters were local match, income targeting, rent
limitations, per unit subsidy limitations, the period of affordability,
and wage rates. Requested statutory changes were: flexible treatment of
over-income tenants; allowing for on-site monitoring every two years;
excluding land acquisition and homeownership from Davis-Bacon
requirements; restoring the funding threshold, removal of the per-unit
subsidy limit; and conforming HOME to the Low Income Housing Tax Credit
program.
Requirements such as HOME rents, tiered income targeting, and match
are statutory provisions which are not subject to regulatory revision.
To the extent the Department has regulatory flexibility in the areas of
monitoring and sources of local match, it has exercised that
flexibility in this rule. For the convenience of the reader, the
preamble does distinguish which provisions are
[[Page 48737]]
statutory and not subject to regulatory revision. In providing more
local flexibility, the Department has created options which permit
participating jurisdictions to make choices in how to define income, to
expand eligible sources of match, to efficiently monitor rental
housing, and to prepare written agreements which reflect the
appropriate requirements.
Additional requirements which commenters identified as burdensome,
but which are actually regulatory, include: site and neighborhood
standards, the capping of low-income at the national income ceiling and
the use of HOME for project-based assistance.
These issues will be discussed section by section in the balance of
the preamble.
Section 92.2 Definitions
Commitment
Three comments were received on this definition. Two commenters
found the language under Sec. 92.2(i)(C) to be confusing. This section
refers to the requirement for a legally binding agreement between the
PJ and the project owner. The commenters noted that in a typical
acquisition project, the PJ will enter into a contract with the
purchaser who in turn will enter into a contract for sale with the
owner. The purchaser (who is the recipient of HOME funds) will acquire
title, rather than transfer title. The commenters recommended that new
language be added to define ``project owner'' as an entity that will
receive HOME assistance and will be the owner of the project not later
than the completion of the project.
Another commenter suggested that when land is being acquired for a
HOME project that the expected start of construction should be extended
from 12 to 24 months from the date of commitment.
The Department agrees with the clarification on project owner and
has made the change in the definition. The Department believes that 12
months from the time of project commitment to construction start is a
reasonable period of time and declines to make that change.
Community Housing Development Organization (CHDO)
Eleven comments were received on the definition of a CHDO. Two
commenters urged that the definition of a CHDO remain the same. Concern
was expressed that tampering with the CHDO definition could be harmful
to the development of local affordable housing delivery systems.
Eight commenters found that the current definition is restrictive,
targets a very narrow band of specific non-profit organizations, and
often disqualifies accomplished and committed community organizations.
Two commenters felt there needed to be additional avenues for groups
just forming to access capacity building funds.
Four commenters requested that the requirements concerning CHDO
governing board membership be changed to include all legitimate non-
profit housing providers. One commenter stated that the CHDO set-aside
should be a non-profit set-aside (statutory). State and local
governments, through their consolidated plans, should be able to
determine the appropriate CHDO organizational structure.
One commenter urged that CHDO qualifications be consistent with
requirements for non-profit participation in other federal housing
programs and the Low Income Housing Tax Credit program. Another
commenter found that the current regulations concerning demonstrated
capacity need to be more specific, and should include such elements as
a long term organizational plan and regulatory experience and
knowledge. A third commenter requested that the requirement that CHDOs
have a formal process for low-income beneficiaries to advise the CHDO,
be made as flexible as possible. Under no circumstances should CHDOs be
required to amend their bylaws if they can demonstrate a satisfactory
community consultation process.
One commenter found that the current CHDO model is purely urban and
negatively impacts on rural areas whose non-profits are relatively
young, primarily experienced in poverty programs and unfamiliar with
labor standards, Section 3, Section 504 and rehabilitation/acquisition
requirements. The same commenter urged that CHDOs be allowed to
undertake all eligible HOME activities, instead of those where the CHDO
acts in the riskier owner, developer or sponsor role.
The Department declines to make any changes in the community
housing development organization (CHDO) definition. The Department
believes that there was specific statutory intent to create an
entitlement for community-based nonprofit organizations who would own,
sponsor or develop HOME-assisted housing. While partnerships with State
and local government are critical to the development of affordable
housing, these organizations are viewed as private, independent
organizations separate and apart from State or local governments.
One of the major objectives of the Department's technical
assistance program is to increase the number of capable, successful
CHDOs able and willing to use the CHDO set-aside, required by the
statute.
Homeownership
Two comments were received. Both commenters supported allowing a PJ
to classify limited equity cooperatives and/or mutual housing as either
homeownership or rental housing based on State law. This would ensure
consistent treatment throughout a State's affordable housing programs.
It was suggested that the regulations define both terms. It was
recommended that the HOPE 2 definition of ``mutual housing'' be used.
The Department has, in fact, been granting waivers in deferring to
a participating jurisdiction's determination under State and local law
as to whether a unit was rental or homeownership. It is clarifying this
procedure in the final rule but is not defining the terms in deference
to State and local law.
Housing
The Department has expanded this definition to include all forms of
housing which are eligible for assistance under the HOME program. The
Department has also clarified that certain types of facilities do not
qualify as housing under the HOME program. Such facilities are
generally classified as ``public facilities'' and may be funded under
the Community Development Block Grant program.
Program Income
The Department has added a definition of program income to clarify
what is included and considered as program income. The Department did
this in response to many inquiries on the use and retention of program
income from participating jurisdictions.
Project
Thirteen comments were received. Commenters were unanimous in
urging HUD to eliminate the ``4 block rule'' for defining a single
project. Commenters stated that this requirement generates substantial,
unnecessary paperwork and results in the arbitrary division of projects
into four block segments. Commenters were unanimous in urging HUD to
allow local flexibility in defining ``project''. One commenter felt the
HUD Field Office should have this authority. All other commenters felt
that the local participant jurisdictions should have this authority.
[[Page 48738]]
Five commenters noted that scattered site housing projects which
are part of neighborhood revitalization strategies are discouraged by
the current requirement. Two commenters could see no compelling reason
for the ``4 block rule''.
Four commenters pointed out that the ``4 block rule'' is
particularly inappropriate for rural areas which often do not have
distinct neighborhoods, and are not divided into city blocks. One
commenter noted that block size varies, and suggested that a \1/2\-mile
radius be used instead.
One commenter raised concerns about how any change in the
definition would affect Davis-Bacon applicability.
The Department is amending the definition of project by deleting
the four block area provision. The Department recognizes the negative
effect on scattered site projects, subdivisions and the
inappropriateness of the standard in rural areas. However, the concept
of a project as a site or sites together with any building or buildings
located on the site(s) under common ownership, management and financing
and assisted with HOME funds as a single undertaking under this part
remains. To the extent twelve or more units are HOME-assisted and are
constructed under one construction contract, Davis-Bacon provisions
would apply, regardless of whether the contract covers units that
comprise one or more projects. However, on larger projects that
formerly comprised separate projects, Davis-Bacon applicability could
now be affected by the prohibition in Sec. 92.354 on arranging multiple
construction contracts within a single project for the purpose of
avoiding the wage provisions.
Reconstruction
One comment was received. The commenter expressed concern that
``rehabilitation'' and ``reconstruction'' are held to different
standards. It was recommended that the term ``reconstruction'' only
apply to those cases where a very small percentage of the existing
structure is maintained.
The definition of reconstruction continues to read that it is
considered rehabilitation for purposes of this part.
Single Room Occupancy (SRO) Housing
Four comments were received. All commenters strongly supported the
July 12, 1995 regulation clarifying that, for acquisition or
rehabilitation of an existing residential structure or hotel, neither
food preparation nor sanitary facilities are required within the units.
One commenter stated that it would like this flexibility to extend to
new construction and reconstruction projects as well.
One commenter urged that the HOME's SRO definition continue to
conform to the definition for other federal programs so the programs
can work together.
The HOME definition for SRO is adopted from a FHA multifamily
insurance program and it is more permissive in its occupancy standard.
The Department declines to eliminate the requirement to have either
food preparation or sanitary facilities when buildings are newly
constructed or converted from non-residential space. By creating new
housing with some or all of the basic amenities, it is hoped that the
units will be more marketable and livable in the future.
Subpart B--Allocation Formula
Section 92.50 Formula Allocation
On July 12, 1995, the Department published a proposed rule to make
a change in the operation of the HOME formula. It was proposed that
Section 92.50(d)(3) would be revised to maximize the number of units of
general local government which receive an initial allocation of HOME
funds.
Formerly, units of general local government, after an initial
distribution of funds available for allocation, were eliminated at
$250,000 and below. They were eliminated from the pool of eligible
jurisdictions and their allocations were redistributed among other
units of general local government. This redistribution technique
continued until 95% of the funds had been distributed among units of
general local government that received $500,000 or more. The new method
would drop only one jurisdiction on each recalculation, and
redistribute funds to all others, thus assuring that the maximum number
of units of general local government receive an allocation.
The Department received 12 comments on this section of the proposed
rule.
On the formula redistribution technique to maximize the number of
participating jurisdictions, eight commenters favored the change while
two did not. One of the two commenters felt that additional performance
criteria should be added to the formula calculations rewarding good
performance.
Another commenter suggested that the Department establish a
participation threshold of $500,000/$750,000 regardless of the annual
appropriation. PJs who previously qualified under a lower threshold
would be grandfathered (statutory change). The same commenter
recommended that allocations for newly formed or expanded consortia
come from the State set-aside rather than from the PJ set-aside
(statutory change).
The Department has adopted the proposed formula change and
republished the rule on January 23, 1996 for effect in order to use the
methodology for FY 1996 allocations. The two other suggested changes
have not been made because they would require statutory changes.
Subpart E--Program Requirements
Section 92.201 Distribution of Assistance
Two comments were received. Both commenters expressed concern that
State participating jurisdictions can allocate funds to participating
jurisdictions which receive their own direct funding allocation. This
diverts HOME funds from smaller rural communities which are in great
need of these funds. The commenters urged that the regulations be
revised to prohibit this practice.
The State's ability to distribute HOME funds to projects anywhere
within the State is a statutory provision.
Section 92.202 Site and Neighborhood Standards
Ten comments were received. The commenters were unanimous in
recommending that site and neighborhood standards not apply to HOME new
construction projects. Commenters felt that these standards inhibit
investment in minority areas, discourage revitalization of the most
needy areas and keep participating jurisdictions from assisting
minority families who wish to move into racially mixed areas.
Commenters considered the imposition of federal standards to be
contrary to the basic notion of local control and discretion inherent
in the HOME program.
Five commenters stated that compliance with State and local
standards should be sufficient. Therefore, Federal site and
neighborhood requirements should be entirely eliminated. One commenter
noted that the Federal standards often conflict with Court ordered
housing plans.
Five commenters recommended that participating jurisdictions be
permitted to address the issues of concentration and impact as part of
their consolidated plans. This would allow for public input and the
adoption of standards which are appropriate for local needs.
The Department is limiting the application of site and neighborhood
standards to newly constructed rental
[[Page 48739]]
projects and excluding new construction homeowner projects. The
Department believes that the creation of new homeowner opportunities is
important to all neighborhoods.
Section 92.203 Income Determinations
Five comments were received. Four commenters requested that
participating jurisdictions have the option to define income in the
same manner as the CDBG program. Current HOME requirements are unduly
strict and labor intensive. Under CDBG, jurisdictions may select one of
three criteria; (a) Section 8; (b) census long form; (c) IRS adjusted
gross income. Since CDBG and HOME are often combined in the same
project, allowing the same income definition to be used facilitates
program administration.
One commenter recommended retaining the Section 8 definition for
income as a more accurate reflection of a person's income.
Commenters also urged flexibility in obtaining income verification.
One commenter recommended that participating jurisdictions be permitted
to either directly obtain verification or accept the verification from
another program with income requirements that are at least as strict.
One commenter urged that occupants of HOME assisted units who do not
receive Section 8 should simply be allowed to report income based on a
pay stub or tax return. Two commenters requested that HOME
participating jurisdictions be allowed to use the same ``presumed
income eligibility'' approach for special needs populations that the
CDBG program uses.
Special needs populations may only be presumed income eligible in
the CDBG Program for limited clientele, at least 51 percent of whom are
low or moderate income persons. For housing, income eligibility must be
established.
One commenter requested that the Section 8 income qualification
process not be used in determining eligibility for homeownership
assistance. Section 8 criteria are designed for rental assistance and
can penalize a person who has saved for a downpayment or home
maintenance.
One commenter requested that HUD eliminate the requirement that
caps the 80% of median income level in high cost communities at the
national median. This penalizes such communities.
The Department has adopted the three options to define income
currently permitted in the CDBG Program. For rental projects, the HOME
statute requires that income be verified initially and during the
period of affordability. However, the Department has also provided
three ways to determine tenant eligibility before a tenant receives the
benefit of HOME assistance. The options create greater flexibility in
initial and subsequent income determinations for tenants occupying
HOME-assisted rental units.
In regard to the request to remove income limit caps in high cost
areas, the Department recently reevaluated its policy of capping Low-
Income limits at the national median family income (currently $41,600
for a family of four) in areas with unusually high income. It
determined that it continues to make good policy sense to have an
income limit cap in this era of increasingly scarce Federal housing
assistance resources, and that it has legislative authority to set a
cap. HUD also has determined, however, that the logic of the income
limits calculation system suggested that higher income limits should be
permitted for high-income areas with unusually high housing-cost-to-
income relationships. On May 2, 1996, HUD Notice 96-01 increased the
Low-Income limits for 8 metropolitan and 12 nonmetropolitan areas based
on this determination.
Section 92.205 Eligible Activities: General
Fifteen comments were received concerning eligible activities.
Refinancing of Multifamily Properties
Thirteen comments concerned the refinancing of multifamily
properties. One commenter opposed using HOME funds for refinancing
multifamily properties because it does not generally result in a net
increase in affordable housing.
Twelve commenters supported using HOME funds for refinancing
multifamily properties. Refinancing was seen as an important tool in
preserving affordable housing. Refinancing was also viewed as an
effective way to leverage private funds. One commenter noted that in a
soft market, refinancing is often the most cost effective way to
increase the number of affordable units. Several commenters stated that
refinancing ensures that existing affordable units are retained at a
level of affordability and maintenance which would justify the HOME
investment. Another commenter stated that it is often necessary to
include the refinancing of debt in a rehabilitation financing package
in order to attract conventional lenders. One commenter found that in
rural areas where HOME rents are low, the refinancing of existing debt
is needed to ensure project feasibility.
Despite strong support for allowing multifamily refinancing, most
commenters felt refinancing should only be permitted under certain
circumstances. HUD was urged to move cautiously after further
consultation with HOME participating jurisdictions and organizations.
However, one commenter stated that HUD should allow participating
jurisdictions to structure their own refinancing provisions subject to
local HUD office approval (similar to resale/recapture provisions).
One commenter would limit refinancing to properties where ownership
has recently been, or is being transferred to a public entity, a non-
profit or resident owners. Another commenter would limit refinancing to
projects owned by non-profits where refinancing would result in lowered
rents and where code violations exist. Another commenter would limit
refinancing to use in conjunction with receivership, provided continued
affordability and stability of units is maintained. Another commenter
would limit refinancing to buildings where either increased affordable
units or reduced rents could be demonstrated. Another commenter would
limit refinancing to debt incurred to improve property within the last
twelve months, provided the debt service would be reduced and rents
would be lowered. Another commenter would require that at least 49
percent of the units must be HOME-assisted and the affordability period
be 20 years regardless of the amount of HOME assistance.
The Department recognizes the necessity of refinancing for some
multifamily projects but is also aware that the use of HOME funds for
this purpose reduces the amount of funds available for the development
of additional affordable units. In developing guidance in the final
rule at Sec. 92.206(b)(2), the Department felt refinancing should be
permissible under certain circumstances according to guidelines
developed by the participating jurisdiction as part of its consolidated
plan. At minimum, the guidelines would require refinancing be done in
connection with rehabilitation, reduce overall project costs when HOME
funds are lent and subject multifamily rental projects be to a longer
affordability period of at least 15 years. A participating jurisdiction
would also identify whether refinancing would be permitted city wide or
limited to a particular area such as a neighborhood identified in
neighborhood revitalization strategy, an Empowerment Zone or Enterprise
community. HOME funds cannot be
[[Page 48740]]
used to refinance a multifamily loan made with Federal funds or which
is Federally insured.
Other Activities
One commenter recommended that housing counseling be an eligible
activity for households which are considering applying for HOME
assistance, or households which have applied and been rejected.
Currently, housing counseling is only eligible as a project soft cost
for owners or tenants of funded projects.
Participating jurisdictions may also use their administrative funds
to cover the cost of homebuyer counseling programs.
One commenter recommended that HOME be allowed to fund exterior
painting, landscaping and clean-up in neighborhood revitalization
areas, along with the development of affordable housing to further
neighborhood stability.
While the Department is providing additional flexibility with
regard to housing standards, it is not permitting its use for emergency
repair or neighborhood cleanup programs with HOME funds unless all
assisted units are brought up to an established standard (see
Sec. 92.251). The HOME Program was created to be a housing production
program and has successfully assisted 184,000 units of standard
housing.
Forms of Assistance
Ten comments were received. Eight comments concerned loan
guarantees.
Loan Guarantees
Commenters were unanimous in supporting the July 12, 1995
regulatory change establishing the eligibility of loan guarantees.
Commenters considered loan guarantees to be an excellent way to
leverage the use of private funds and welcomed this flexibility.
However, most commenters felt that the loan guarantee requirements
needed further revisions. One commenter requested that the regulations
clarify that loan guarantees must be used to expand the availability of
private financing or obtain more favorable terms. This same commenter
found the 20% cap on the guarantee fund to be too rigid and recommended
an increase to 50%, with the provision for additional waivers. Another
commenter felt investor interest may be reduced by the requirement that
all guaranteed loans must meet HOME requirements. The commenter
suggested a less restrictive standard for projects which have no direct
HOME subsidy, such as the project having at least 20% of the units
affordable as long as the HOME funds guarantee the loan (statutory
change).
One commenter made numerous suggestions for revising the way a loan
guarantee pool should be structured. The commenter was concerned that
current language appears to require participating jurisdictions to
underwrite and manage subrecipient loans, and urged that participating
jurisdictions be given the authority to delegate this to the
subrecipient. This commenter also noted that most loan pools are
established by dollar amount, and not by the number of estimated loans.
The commenter recommended that participating jurisdictions be given
both options. The commenter was concerned with the prohibition on
increasing the number of loans, and the fact that the current
requirements result in guaranteeing initial loans at 100%.
Recommendations include allowing the draw down of funds when there is a
clear binding commitment in place with the lender; allowing non-
eligible HOME loans to be included in the loan pool, provided the loan
guarantee is limited to HOME eligible loans; allowing HOME funds to
subsidize interest on the loan pool; clarifying that repayment of non-
HOME funds are not subject to HOME eligibility restrictions; and
providing for Secretarial approval of other loan guarantee models which
meet the basic purpose of the regulations.
The Department is open to additional suggestions concerning the way
to structure loan guarantees as was indicated in the preamble to July
12, 1995 rule. A participating jurisdiction may carry out a loan
guarantee program through a subrecipient, with the duties and
responsibilities detailed in a written agreement. However, the
participating jurisdiction is ultimately responsible for the
administration of all of its HOME funds. HOME funds may be drawn down
for a loan guarantee at the point in time when HOME funds are invested
in a project. While this may lead to 100 percent guarantee of earlier
loans in order to establish a minimum balance in the guarantee fund,
that will quickly diminish as successive loans are guaranteed. The
Department in creating a ``project'' concept of a certain number of
loans to be guaranteed did so in order to trigger the reporting of the
units being assisted at the end of the project, regardless of whether
all the projected loans were made. HOME funds can also be used to write
down the interest rate of private loans in order to make the loan more
affordable for new homebuyers or project owners. In the July 12, 1995
rule, the Department at Sec. 92.205(b)(2) made it clear that while
loans funds guaranteed with HOME funds are subject to all HOME
requirements, funds which are used to repay the guaranteed loans are
not.
Other
One commenter requested that ``compensating balances'' be
specifically allowed. Another commenter recommended that HOME provide
bridge financing for tax credit projects, and for a long-term loan
guarantee program like Section 108 (statutory change).
The Department believes that the loan guarantee concept is a more
efficient way to leverage private funds than the compensating balance
approach. In a new section at Sec. 92.206(g), the Department has
clarified that HOME funds may be used for construction or bridge
financing. The Department does not currently have statutory authority
to create a Section 108 type program for HOME but has suggested such an
approach in its current legislative package.
One commenter recommended that the regulations clarify the
eligibility of equity investments which are part of the financial work-
out of an existing low-income housing project.
Under existing rules, a participating jurisdiction may provide
funds in the form of an equity investment. This means that the
participating jurisdiction becomes part owner of the housing. The
eligible cost would be acquisition.
Termination Before Completion
Current regulations require the repayment of all funds expended on
a project which does not go forward. One commenter proposed that
participating jurisdictions be allowed to forgive such repayment where
there are impediments to project development which are reasonably
beyond the control of the owner. This approach is consistent with
policy which forgives CHDO project-specific loans. There are instances
where neither the owner nor the PJ can recover these funds.
Participating jurisdictions should not be required to assume financial
liability for such situations.
The Department declines to change its policy with regard to
reimbursement of funds when a project does not proceed, but will
examine the facts relating to specific instances as they occur. The
statute provides separate loan authority to cover CHDO predevelopment
costs, which are not eligible for other HOME projects and may be
forgiven if the project does not go forward.
[[Page 48741]]
Manufactured Housing
Five comments were received on the requirement that HOME-assisted
manufactured housing for rent or homeownership be situated on permanent
foundations.
One commenter suggested that State laws governing the taxation of
manufactured housing as real property should be the standard for
determining whether a unit is considered HOME-eligible.
Four commenters recommended that the permanent foundation
requirement be eliminated. All of these commenters cited the
significant additional cost (estimated at about $7,500 by some
commenters) as an obstacle to providing affordable housing in rural
areas and as the primary reason for elimination. Three of the
commenters questioned HUD's assumption that permanent foundations make
manufactured housing units safer. One of the commenters pointed out
that not all areas of the country experience the type of weather
patterns that might justify the expense of installing manufactured
housing units on permanent foundations.
One commenter urged the Department to maintain its current
requirements with respect to manufactured housing. The commenter cited
safety and the need to develop a stock of permanently situated,
standard manufactured housing in rural areas as the justification for
this position.
The Department has removed references to manufactured housing in
Secs. 92.252 and 92.254. The Department has included under eligible
activities, a new section at Sec. 92.205(a)(5) on manufactured housing
in which it has eliminated the requirement for a permanent foundation
in deference to local and State standards for this type of unit.
Section 92.206 Eligible Project Costs
Three comments were received. Two commenters recommended that the
rule be revised to permit initial operating reserves for new
construction and all rehabilitation projects, not just substantial
rehabilitation projects.
The Department has made this change as well as clarifying that
reserves for initial operating expenses (which include scheduled
payments to project replacement reserves) permitted for the first 18
months of a project may remain with the project after that period at
the discretion of the participating jurisdiction.
Another commenter suggested that all pre-environmental clearance
activity costs be reimbursable activity delivery costs.
The Department agrees that participating jurisdictions may incur
costs which may be reimbursed with HOME funds, provided all HOME
requirements have been met, including the environmental review
requirements of Part 58. Under certain circumstances, costs may be
incurred prior to the award of a fiscal year HOME allocation and
charged to the HOME allocation after its award. This is discussed under
the new Sec. 92.212. However, costs for activities covered by Part 58
can not be reimbursed if the NEPA requirements are not met prior to
incurring these costs. The costs of preparing environmental reviews and
clearances may be charged to either administrative costs or project
costs. This is clarified under Sec. 92.207(g).
Section 92.207 Eligible Administration and Planning Costs
Four comments were received. Two commenters said that the 10
percent administrative fee is insufficient and should be increased
(statutory). They also recommended that participating jurisdictions be
permitted to charge application and monitoring fees of developers of
HOME-assisted projects. One commenter recommended that the Department
return to its original regulatory language of permitting 10 percent of
the HOME allocation to be spent on administration. They objected to the
cost allocation methods suggested at Sec. 92.207(a)(1).
Participating jurisdictions are permitted to charge nominal
application fees to discourage frivolous applications. The HOME
Program, however, provides a 10 percent administrative fee for ongoing
administration of the program. The cost allocation methods detailed at
Sec. 92.207(a)(1) are simply an amplification of the procedures
required by OMB Circular A-87 revised and OASC-10, Cost Principles and
Procedures for Establishing Cost Allocation Plans.
The Department has also clarified that meeting the requirements
under Subpart H, Other Federal Requirements, is an eligible
administrative cost.
The third commenter recommended that the Section 8 Housing Quality
Standards inspection for a unit receiving tenant-based rental
assistance be an eligible related soft cost chargeable to a TBRA
project.
The Department declines to make this change since it views the
operation of a tenant-based rental assistance program as an
administrative cost under the 10 percent administrative cost cap.
Assisted Units in Multi-unit Projects
The Department in a new paragraph at Sec. 92.205(d) expressly
permits HOME funds to assist less than all units in a project and
addresses prorating costs in projects with less than 100 percent HOME-
assisted units. The regulation permits cost allocation when the units
are not comparable in size, features or amenities. Guidance on
attribution of eligible costs to the HOME program is detailed in CPD
Notice-94-12, Allocating costs and identifying HOME-assisted units in
multifamily projects.
Section 92.208 Eligible CHDO Operating Expense and Capacity Building
Costs
One commenter recommended that the 5 percent CHDO operating
expenses be deducted from the CHDO set-aside.
The statute provides that both the 10 percent administrative amount
and the 5 percent CHDO operating fund be deducted from the
participating jurisdiction's total allocation. A participating
jurisdiction has discretion about whether to use either or both
allowable percentages.
Section 92.211 Tenant-based Rental Assistance
Six comments were received. All six commenters endorsed the interim
rule change which permitted HOME tenant-based rental assistance to be
targeted to special needs populations. One commenter asked whether
special needs populations would be defined for this purpose, suggesting
that complete local flexibility be permitted within the confines of
existing civil rights and fair housing law.
The Department declines to define special needs populations and
defers to the priorities which participating jurisdictions establish in
their consolidated plan under 24 CFR 91.
Secs. 92.209, 210 and 211 on tenant-based rental assistance and
security deposits have all been consolidated in Sec. 92.209. This
section contains clarification of required income eligibility
determinations and annual property inspections.
Section 92.212 Pre-award Costs
The Department added a new section covering pre-award costs and the
requirements which must be met.
Section 92.214 Prohibited Activities
Six comments were received on this section of the rule. Five of the
commenters recommended that the Department permit the funding of both
operating reserves and reserves for replacement. To the extent the
Department permits initial operating
[[Page 48742]]
reserves for the first eighteen months of a project, these funds can
remain in the project at the discretion of the participating
jurisdiction. Two of the five commenters suggested that the Department
also permit operating subsidies.
As discussed earlier under Sec. 92.206, Eligible project costs, the
Department agrees that during the initial rentup of a project both
operating reserves and reserves for replacement required for the first
18 months of a project may be funded and retained by the project at the
discretion of the participating jurisdiction.
With the program emphasis on production, the Department declines to
fund operating subsidies.
Two commenters also requested that participating jurisdictions be
permitted to add additional HOME funds to projects during the period of
affordability, to handle unanticipated costs particularly during a
twenty year affordability period.
While the Department declines to make this a general policy, it
would be willing to examine cases where it might be appropriate to
permit additional funding.
Income Targeting
Section 92.216 Income Targeting: Tenant-based Rental Assistance and
Rental Units
Four comments were received on the overall targeting requirement
for project and rental assistance under the HOME Program. Two of the
commenters suggested that the targeting requirements be changed to
parallel the requirements for the low-income housing tax credit i.e.
that 20 percent of the units be reserved for households at 50 percent
of median income or that 40 percent of the units be reserved for
households at 60 percent of median income (statutory).
One commenter suggested that the complex rent structure be
eliminated while retaining a single targeting requirement that all
assistance should benefit tenant households below 80 percent of median
income (statutory).
Another commenter objected to the requirement that family income
and family size and composition be reexamined at least annually
(statutory).
Since all the changes require statutory amendments, the Department
did not adopt any of these changes. See Sec. 92.203(a)(1) for options
in determining tenant eligibility in HOME-assisted rental housing.
Matching Contribution Requirement
The Department received comments from seventeen parties regarding
match. Four of these commenters recommended that the HOME match
requirements be eliminated (statutory). Two commenters suggested that
the match concept be replaced by a leverage requirement (statutory).
One of these commenters suggested a 50% to 75% non-Federal leverage
requirement.
Numerous other commenters made specific suggestions for changing
the current match requirements.
Sections 92.218-92.222, covering the match contribution
requirements, have been revised to make the sections clearer, to
reflect policy determinations gained through program operation and to
expand the sources of match in response to public comment.
Section 92.218 Amount of Matching Contribution
One commenter stated that the requirement that match liability and
contributions be calculated on a fiscal year basis is cumbersome. The
commenter suggested that, in light of the consolidated plan and the
adoption of single program years that may not coincide with the Federal
fiscal year, participating jurisdictions be permitted to count match on
a program year basis.
While the Department is sympathetic to the comment, the statute
refers to funds expended ``during the fiscal year''.
Another commenter suggested that match liability be incurred at the
time of project completion, rather than as a PJ expends HOME funds.
This, the commenter asserted, would simplify tracking and monitoring
match.
The statute specifies that match liability is incurred as HOME
funds are expended.
Section 92.219 Recognition of Matching Contribution
Three commenters suggested that all State affordable housing
resources be counted as match. Instead of tracking contributions to
specific, eligible housing projects, States should be permitted to
certify that they are committing resources to decent, safe and
affordable housing for low-income persons. These three commenters and
an additional commenter contended that other affordable housing (not
assisted with HOME funds) should not be required to meet the criteria
set out in the rule to qualify as match. One of the three commenters
stated that State participating jurisdictions should not be required to
have written agreements with the owners of other affordable housing
counted as match to ensure that the projects meet the criteria to
qualify as affordable housing.
The statute requires other affordable housing counted as match to
meet the qualifications of Section 215 of the statute. For projects
containing both HOME-assisted and affordable housing units, there
appeared to be confusion that contributions to affordable housing units
could only be counted if at least 50% of the units were HOME assisted.
The Department wants to clarify that contributions to affordable
housing that meet the requirements in Sec. 92.219(b) should be
recognized whether there are no, some or a majority of HOME-assisted
units in the project. The Department also wishes to stress that
contributions are counted only after a written agreement is executed.
Two commenters asked the Department to clarify that housing that is
``substantially equivalent'' to HOME-assisted housing may be counted as
match.
There is currently no such requirement in the HOME program. This
was proposed statutory language that was never passed.
Section 92.220 Form of Matching Contribution
Thirteen commenters requested that the Department expand the
definition of match so that additional types of contributions would be
deemed eligible.
Five commenters suggested that sweat equity be counted as an
eligible match. One of these commenters suggested that this provision
be extended only to organized mutual self-help groups that can document
shared labor requirements.
The Department recognizes the value of a sweat equity contribution
by homeowners as a source of match and has changed the rule
accordingly.
Five commenters suggested that owner equity in homeownership or
rental projects be counted as an eligible match. One of these
commenters suggested that this provision be extended only in cases
where the equity is a ``permanent contribution'' to the affordable
housing.
By definition owner equity is not a permanent contribution to
affordable housing because owners realize their equity upon sale of the
unit or project. However, under cash contributions made from nonfederal
sources, Sec. 92.220(a)(1)(i), the Department has clarified that cash
contributions made to a nonprofit organization for use in a HOME
project may be counted as match.
Six commenters suggested that the value of social services provided
to the residents of HOME-assisted and HOME-eligible housing be counted
as matching contributions. Several of the
[[Page 48743]]
commenters pointed out that significant State and local resources are
expended for this purpose. One of the commenters suggested that the
value of all non-Federal services provided to the residents of HOME-
assisted or other affordable housing (i.e., whether the services are
housing-based or provided to the general community) be permitted to be
counted as match.
The Department has changed the rule to recognize as match the
direct costs related to supportive services necessary to facilitate
independent living or required as part of self-sufficiency programs
provided to residents of HOME-assisted units during the period of
affordability. In addition, the Department has recognized the value of
homebuyer counseling services provided to families who acquire
properties with HOME funds.
Two commenters requested that the rule be changed to count 100% of
the value of tax-exempt bond financing for affordable housing, rather
than the 25% per loan for single-family projects and 50% for
multifamily projects currently permitted (statutory).
Two commenters suggested that the rule be changed to permit donated
professional services to be valued at their market value, rather than
the labor rate established annually for the program.
The rule has been changed to value skilled labor at the rate which
is normally charged while unskilled labor will be valued at a rate set
by the Secretary. The rate is currently $10 per hour.
One commenter suggested that in-kind administrative services
provided to State HOME programs by small local governments be counted
as an eligible match contribution.
Match credit derived from administrative expenses is not recognized
statutorily as a source of match.
Four commenters stated that funds lent to affordable housing
projects (HOME and non-HOME) that are repaid to the original source,
rather than the local HOME account, should be counted as match.
This is currently permitted. However, the value of the match is the
present value of the yield foregone on a below-market interest rate
loan, not the full face value.
Five commenters wrote in support of the two changes made in the
July 12, 1995 rule to count fees and charges waived by nongovernmental
entities as match and to permit match requirements for forgiven CHDO
redevelopment loans to be waived.
Section 92.221 Match Credit
Two commenters asserted that the requirement that match be credited
in the year that it is made may cause compliance problems (i.e.,
inadequate match contributions in a given year) when a PJ relies upon
multi-year match contributions such as property tax forgiveness.
This may be true if there is a long delay in dedicating the match
contribution. However, the current rule permits the present value of
the tax-exemption over the period of forgiveness to be credited
immediately, not year-by-year.
One commenter recommended that States be permitted to accept
resources from local participating jurisdictions to use for State match
contributions.
Although not explicitly stated in the regulation, for a HOME-
assisted project a State may count resources provided by a locality as
match as described in Sec. 92.221(c).
Section 92.222 Match Reduction
One commenter urged the Department to reduce the match requirement
for CHDO activities.
There is no statutory authority to permit this.
Another commenter contended that match reductions granted to States
for disasters and distress result in inequities that complicate the
administration of the program. Specifically, this commenter stated
that, when States can offer HOME funds without match requirements to
jurisdictions within urban counties or consortia and the consortia or
urban county itself must provide full match, the local PJ is put at a
disadvantage in using its HOME funds.
Match reduction based on disaster designation would be the same for
both a State and a local jurisdiction, because a State match reduction
applies only to funds the State uses in a disaster area. While the
Department recognizes the different match liability between State and
local HOME funds created by distress designations, it is clear that
there is not sufficient HOME funds from either source to address the
affordable housing needs and that HOME funds should not go unused in
any community.
Subpart F--Project Requirements
Section 92.250 Maximum Per-Unit Subsidy Amount
Two comments on the maximum per-unit subsidy limits were received.
One commenter proposed that Congress eliminate the statutory provision
requiring HUD to establish per-unit subsidy limits. This commenter
contended that local governments are in the best position to establish
limits based on knowledge of local construction costs and housing
conditions.
Section 212(e) of NAHA was specific that the Secretary shall
establish limits on the amount of HOME funds which can be invested on a
per unit basis, therefore, it would require a statutory change. The
Department has also added a new paragraph to highlight the requirement
for and use of locally-developed subsidy layering guidelines when HOME
funds are combined with other governmental assistance.
Another commenter suggested that the Department reconsider its
decision to define group housing as being one unit to permit more HOME
funds to be expended on such units.
This is not a regulatory definition. See CPD Notice 94-01, Using
HOME Funds for Single Room Occupancy and Group Housing, which provides
great flexibility to participating jurisdictions in how they
characterize SROs and group homes.
Section 92.251 Property Standards
Thirteen parties commented on the property standards applicable to
properties assisted with HOME program funds. Nearly all the commenters
recommended some form of change to the existing requirement that all
HOME-assisted properties meet the Section 8 Housing Quality Standards
(HQS).
Eleven commenters recommended that the Department, under some
circumstances, permit HOME to be used for emergency repairs in which a
unit will not be brought up to HQS. Five of the commenters suggested
that the Department establish a maximum per unit dollar limit for
emergency repairs where a unit would not be required to meet HQS or
some other housing code. Another commenter suggested that the
Department limit the percentage of each HOME allocation that could be
used for such repairs.
Two commenters, who supported emergency repairs, recommended that
the Department maintain HQS as the standard for all other HOME assisted
units.
Three commenters suggested that the Department permit home repair,
weatherization or handicapped accessibility that will not bring a unit
up to code. Another commenter, who favored elimination of the HQS
requirement, felt that, at a minimum, single family housing should be
exempted from the requirement.
Four commenters recommended that the Department require units to
meet
[[Page 48744]]
locally-established housing codes. Two other commenters suggested that
State participating jurisdictions that adopt national model codes be
permitted to use those as the HOME property standard.
One commenter suggested that the Department replace the HQS
requirement with the FHA Minimum Property Standards, to prevent
duplicative inspections where HOME and FHA insurance are being
combined.
Two commenters recommended that the Department continue to require
substantially rehabilitated units to meet the cost-effective energy
conservation standards. Another commenter requested that the Department
make these standards optional.
One commenter recommended that the Department continue to apply the
Council of American Building Official's Model Energy Code to HOME-
funded new construction (statutory).
Two commenters requested that the HQS requirement be eliminated for
manufactured housing units.
Many of these comments with regard to the use of HOME funds have
been addressed in the preamble under eligible activities and project
costs. With regard to the property standard that a HOME-assisted
project must meet, the Department has revised the rule to permit newly
constructed or rehabilitated housing to meet local codes,
rehabilitation standards, ordinances, and zoning ordinances. In the
absence of local code for new construction or rehabilitation, housing
must meet one of the model codes cited in this section. All other HOME
units including those occupied by tenants receiving HOME tenant-based
rental assistance, must meet Section 8 Housing Quality Standards (HQS).
During the affordability period, rental units must continue to meet the
standard which was initially used when the unit was assisted. The cost
effective energy conservation and effectiveness standards have been
deleted as a requirement because they were deleted from 24 CFR Part 39
although participating jurisdictions are encouraged to use them as
guidelines in the rehabilitation of HOME-assisted housing. New
guidelines will be issued shortly.
Section 92.252 Qualification as Affordable Housing: Rental Housing
Nineteen parties provided comments on the HOME provisions for the
qualification of affordable rental housing. Most of the commenters
recommended changes to simplify the rental requirements or to conform
the HOME requirements with those of the Low-Income Housing Tax Credit
(LIHTC).
The Department has revised this whole section to make the rental
requirements easier to understand and clarified the procedures with
regard to initial and subsequent tenant eligibility determinations.
With the statutorily required two tier income targeting and annual
income recertification requirements, the HOME statute differs from the
LIHTC requirements. The rule spells out the options by which tenant
income can be reviewed during the affordability period and offers a
degree of flexibility for single-family rental properties. One option
permits a tenant to submit a written statement of income, which may be
actual income or income ranges which delineate when a tenant is below
50 percent or above 80 percent of median income. The tenant submits
this statement as well as a certification to its completeness and
accuracy. For multifamily projects with longer periods of
affordability, tenant income must be examined periodically using source
documents indicating annual income.
Two commenters recommended that the Department eliminate the 20-
year period of affordability for rental new construction and base
affordability periods on the amount of HOME funds invested regardless
of activity. One of these commenters felt that all HOME requirements
should be eliminated once the HOME funds have been repaid (statutory).
The other commenter suggested that the Department establish a de
minimis threshold of $2,500. Units receiving less than this amount in
HOME funds would have no HOME requirements.
The Department is retaining the longer affordability period for new
construction rental projects because of the substantial investment of
HOME funds in these projects. The other recommendations can not be
implemented because they are statutory.
One commenter felt that the affordability periods established in
the HOME rule were too short and did not accurately reflect the
statutory provision that HOME-assisted properties remain affordable for
their useful life. Another commenter suggested that participating
jurisdictions be given the authority to waive affordability periods for
rental projects in those instances where a tenant wishes to purchase
the assisted unit. This commenter also felt that rental units in HOME-
assisted homeownership projects should not be subject to the rental
requirements.
The Department has made provision for the purchase of a rental unit
by an existing tenant as a way to encourage homeownership. That
provision is included at Sec. 92.255, which describes the affordability
requirements depending upon whether additional HOME funds are invested
to assist the existing tenant to become a homebuyer. In response to the
last comment, the Department has reconsidered the automatic application
of rental requirements to rental units in HOME-assisted homeownership
projects. The new requirements are discussed in Sec. 92.254(a)(ii)(5).
One commenter recommended that the separate program-wide and
project-specific income targeting requirements be eliminated and
replaced with a more flexible system. Specifically, the commenter
suggested that all HOME rental units be initially occupied by families
with incomes below 60% of area median income and carry rents not to
exceed 30% of the income of a family at 80% of area median income
(statutory).
Ten commenters approved of the July 12, 1995 regulatory change with
respect to rent levels when HOME is combined with State or Federal
project-based assistance. Four commenters believed that the Department
should extend this provision to HOME-assisted units occupied by
families receiving tenant-based assistance. One commenter felt that the
provision should be extended to include local project-based assistance.
On the change in the threshold for the 20 percent very-low income
occupancy requirement from a project with three units to a project with
five units, the Department received fourteen comments. Twelve of those
comments were supportive of the change citing an easing of
administrative requirements for small rental properties. Three
commenters, national public interest groups, opposed the change as a
diminishment of the potential number of units occupied by very-low
tenants.
The Department because of language in Section 215(a)(1)(B) of the
statute can not provide similar treatment for local project-based
rental assistance as it did for Federal or State rental assistance.
Section 92.253 Tenant and Participant Protections
Two parties commented on the HOME tenant and participant
protections. One commenter recommended that the Department delete these
provisions and permit participating jurisdictions to develop their own
standards (statutory). Another commenter specifically objected to the
requirement that tenants be given 30 days notice before tenancy can be
terminated for cause. (statutory). The commenter states that the HOME
requirements are inconsistent with other
[[Page 48745]]
HUD program requirements, which differentiate between ``good cause''
and ``material noncompliance.'' The effect of this provision, the
commenter claims, is that owners must wait 30 days to begin eviction
proceedings for a tenant that has failed to pay rent or has committed a
violent crime on the premises. The commenter recommends eliminating the
notice requirement.
Because of the statutory nature of these items, the Department has
not accepted these recommendations.
Section 92.254 Qualification as Affordable Housing: Homeownership
Seventeen parties commented on the provisions that set out the
qualifying criteria for affordable homeownership units. Three
commenters objected to the requirement that the purchase-price or
after-rehabilitation value of assisted homeownership units not exceed
95% of the median purchase price for the area. One commenter pointed
out that this requirement makes it difficult to assist low-income
elderly persons who are ``house-rich.'' Another expressed the belief
that this provision limited homebuyer assistance programs to areas of
low-income concentration (statutory).
In response to these comments but recognizing the need to carry out
statutory intent, the Department is offering a participating
jurisdiction the option of determining 95 percent of the median area
purchase price locally and putting that information into its
consolidated plan for approval by the Department. Alternatively, a
participating jurisdiction can continue to use and may obtain the
Single Family Mortgage Limits for Section 203(b) from the single
housing family division in the field office. The information will no
longer be distributed nationally by the Office of Affordable Housing
Programs, CPD Headquarters.
Four other commenters did not object to the limitation on purchase
price, but recommended elimination of the limit on the appraised value
of a unit at the time of acquisition. Two commenters contended that the
purchase price limitation alone was sufficient to limit the use of HOME
funds to suitable, modest housing. One commenter noted that the
appraised value limitation has a negative impact on the use of newly
constructed units, which typically have higher appraised value, in the
HOME Program. Another commenter recommended that the Department permit
participating jurisdictions to use alternate method to appraisals to
determine after-rehabilitation value of properties.
Whether using the Section 203(b) or locally derived 95 percent of
median purchase price limits, a participating jurisdictions will be
responsible for setting the limits, determining the property value of
units which are acquired and rehabilitated, and demonstrating that HOME
funds are used in keeping with statutory intent, that of subsidizing
the purchase of modest housing. The requirement for an appraisal has
been eliminated, however, PJs must have a reasonable method to
determine property value.
Twelve commenters expressed their approval of the changes made to
the homebuyer assistance recapture provisions in the July 12, 1995
interim rule. This rule provided participating jurisdictions additional
flexibility in establishing recapture rules. The commenters felt that
these changes would make the HOME Program easier to use in a variety of
housing markets.
Two commenters objected to the provision that applies the resale
restrictions to homebuyer units for which no direct subsidy was
provided to the homebuyer so that no HOME funds will be subject to
recapture. One State commented that it uses its HOME funds to
revitalize distressed areas by rehabilitating housing and selling it at
market price. Because the area is distressed, demand is low, and the
housing is available at affordable prices without the need for
homebuyer assistance. Most of the homebuyers are low-income. The State
urged that homebuyers who are buying housing rehabilitated or
constructed with HOME funds in distressed neighborhoods not be burdened
with deed restrictions which make the property even less desirable.
The final rule contains a new provision under which resale deed or
other restrictions are not required to be imposed. The provision
permits the participating jurisdiction to do a market analysis which
supports a presumption that the housing meets the resale requirements,
i. e., the housing will be available to a subsequent low-income
purchaser who will use the property as its principal residence and will
be sold at a price which is affordable to a reasonable range of low-
income homebuyers and affords the homeowner a fair return on
investment. The market analysis must include an evaluation of the
location and characteristics of the housing and residents in the
neighborhood in relation to housing and incomes in the housing market
area. If a participating jurisdiction in preparing a neighborhood
revitalization strategy or an Empowerment Zone or Enterprise Community
application has developed this type of market data, those submissions
may serve as the required analysis under this section.
One commenter asked that the Department clarify that the net
proceeds of a homebuyer unit resale include the original homebuyer's
investment in capital improvements.
The net proceeds, the sales price minus loan repayment other than
HOME funds and closing costs, does not include capital improvements,
except to the extent that these improvements would be reflected in the
sales price. However, capital improvements are included in the
calculation of the homebuyer's investment in the property and
considered in determining the amount of HOME funds to be recaptured.
The Department has added a new section on Special considerations
for single family properties with more than one unit. This section
clarifies the application of rental requirements when HOME funds are
used to assist both the homeowners unit and one or more rental units.
If HOME funds are used to assist only the rental units in such a
property then the requirements of Sec. 92.252 would apply and the
owner-occupied unit would not be subject to the income targeting or
affordability provisions of Sec. 92.254.
Section 92.255 Mixed-income Projects
One commenter contended that, in projects with units that are not
HOME-assisted, incomes should be collected only for residents of units
that are HOME-assisted.
This section is retitled and the requirements previously in this
section have been incorporated into the match section at
Sec. 92.219(a). In response to the commenter, income information is not
required to be collected for tenants occupying units that are not HOME-
assisted unless the units are HOME eligible and an investment in these
units is being counted as a match contribution.
Section 92.256 Mixed-use Projects
One commenter suggested that the Department eliminate the
requirement that mixed use projects be at least 51% residential in
order for contributions to the nonresidential portion to count as match
(statutory).
This section is being eliminated and the statutory requirement on
match is being consolidated into the rule at Sec. 92.219(a)(4).
Section 92.258 Limitation on the Use of HOME Funds With FHA Mortgage
Insurance
Six commenters recommended elimination of the provision extending
[[Page 48746]]
the HOME period of affordability to match the term of the mortgage when
HOME and FHA mortgage insurance are combined. Commenters noted that
this placed a significant burden on owners receiving a small amount of
HOME funds, especially homebuyers receiving downpayment assistance.
Others characterized the requirement as unfairly penalizing projects
that receive FHA mortgage insurance. An additional commenter suggested
that the requirement apply only to projects receiving more than $15,000
in HOME funds.
One commenter supported the requirement and recommended that it be
left intact.
The Department agrees with the majority of commenters and has
eliminated this provision.
Subpart G--Community Housing Development Organizations
Thirteen comments were received relating to the CHDO set-aside,
operating expenses, and redevelopment costs.
Section 92.300 Set-aside for Community Housing Development
Organizations
One commenter felt that the rule as it now stands is excellent but
the unwillingness of certain participating jurisdictions to delegate
authority to CHDOs is a significant issue. This view was echoed by a
second commenter who criticized participating jurisdictions for their
unwillingness to provide CHDO operating funds. This commenter
recommends that the final rule elaborate on the extent to which CHDOs
may retain funds repaid from set-aside projects and, by so doing,
distinguish between these repayments and program income which must be
returned to the PJ. The commenter also objects to participating
jurisdictions requiring that local match provided to CHDO projects be
returned to the local or State trust fund account upon repayment
instead of being retained by the CHDO. In the commenter's view, this
policy seriously undermines the ability of any CHDO to obtain local
match.
The Department is revising this section to permit participating
jurisdictions to allow CHDOs, who are assisting homebuyers in
connection with the development of homebuyer housing under Sec. 92.254,
to retain the return of the investment of HOME funds (i.e. interest on
HOME loans, the proceeds from permanent financing) for use for HOME-
eligible or other affordable housing activities. However, any recapture
of HOME funds not meeting the affordability requirements is required to
be used for HOME activities in accordance with the requirements of Part
92.
In the opinion of three commenters, owner-occupied housing
rehabilitation should be included among eligible CHDO set-aside
projects while a fourth supports allowing downpayment assistance to be
included as well. One of these commenters goes further in recommending
that any HOME-eligible activity undertaken by a CHDO, including tenant-
based assistance, be considered as a set-aside project. This view was
also expressed by three other commenters. Yet another commenter
proposed that a carry-over credit be instituted for funding provided in
excess of the minimum 15 percent set-aside in any year (statutory).
The statutory provisions established the CHDO set-aside exclusively
for community-based nonprofits who would own, sponsor or develop
affordable housing. It is in keeping with this special intent, that the
Department declines to include other eligible activities for use of
set-aside funds. The Department has also determined that the statute is
clear that a minimum of 15 percent of each year's HOME allocation
should be reserved and used by CHDOs.
One commenter requested that the language in Sec. 92.300(a)
relating to CHDO ownership of projects in partnership with other
persons or entities should be changed to make clear that separate
nonprofit subsidiaries as well as wholly owned for-profit subsidiaries
can be a managing general partner. According to the commenter, it is
common, particularly when using Low-Income Housing Tax Credits, for
CHDOs to establish a separate, nonprofit subsidiary to be the managing
general partner.
The Department has made that clarification.
One commenter strongly expressed their opposition to Federally
mandated set-asides in general and the 15 percent CHDO set-aside in
particular believing that the Federal government should not dictate
which housing providers receive States fund. According to the
commenter, States face the distressing prospect of losing scarce
housing funds to reallocation because they have few qualified
nonprofits and even fewer qualified CHDOs. This commenter recommends
that, at a minimum, the set-aside should be transformed into a general
nonprofit set-aside, using a reasonable definition such as that
utilized under the Low-Income Housing Tax Credit (statutory).
Another commenter objected to the CHDO set-aside, stating that it
often must award funds to nonprofit groups that are less qualified than
for-profit developers in order to meet this requirement. The commenter
recommends that all references to CHDOs be deleted from the law and
that the CHDO set-aside be transformed into a general non-profit set-
aside (statutory).
With respect to CHDO operating expenses, one commenter believes
that the requirement limiting availability to CHDOs expected to receive
set-aside funds within 24 months should be eliminated. Instead, the
agreement between the PJ and the CHDO should specify the expectations
of the parties. In addition, the commenter feels that if the operating
support is being used to strengthen a CHDO's asset or property
management capacity, then the agreement should also set benchmarks for
these efforts. Finally, the commenter suggests that language in the
regulations describing eligible uses for operating support be changed
to make clear that such support is not limited to the costs directly
associated with the development of specific projects.
Another commenter recommended that the provision of operating funds
to CHDOs be made mandatory since participating jurisdictions seem
unwilling to provide this support (statutory). The Department believes
that CHDO operating funds are the means to permit CHDOs to successfully
use HOME funds for projects in which they are owners, sponsors or
developers. These operating funds may be used for general
administrative and operating expenses as well as for project costs, but
they are being provided in connection with the anticipated use of HOME
funds, just as they are provided to participating jurisdictions for the
production of HOME-assisted affordable housing. The Department has
clarified at Sec. 92.300(f) that the limitation on the amount of HOME
funding received by a CHDO in any fiscal year does not include
administrative funds provided under Sec. 92.207 when a CHDO is acting
in a subrecipient or contractor capacity.
Section 92.301 Project-specific Assistance to Community Housing
Development Organizations
One commenter recommends that the authority to use HOME as
redevelopment funds that would not need to be repaid if the project did
not go forward be extended to non-CHDO owners and developers
(statutory).
[[Page 48747]]
Subpart H--Other Federal Requirements
Section 92.350 Equal Opportunity and Fair Housing
Four comments were received on this section. Two commenters
objected to the imposition of the Section 3 rule, which they contend
goes substantially beyond local capacity to administer employment and
training programs. They indicate that the rule requirements go far
beyond the statutory requirement of employing local residents to the
``greatest extent feasible''. They also contend that the Davis Bacon
requirements impede Section 3 objectives in that small, local
contractors do not have the administrative expertise to maintain
compliance and reporting records.
One commenter suggested that local minority and women's owned
business programs should be given credit for meeting Section 3
requirements. Another commenter complained that it is burdensome to
apply Section 3 requirements to a whole project when Federal funds
often represent a small portion of the financing.
The Section 3 requirements were subject to separate rulemaking and
comment and the Department has not altered the requirements in this
section.
One commenter suggested that affirmative marketing compliance
monitoring should be done at the same time that HOME projects are
monitored for rents, tenant incomes, and Housing Quality Standards.
The Department believes examination of affirmative marketing
records during on-site inspections and reviews of rents is a good
suggestion, however, no change has been made to the regulation.
Section 92.352 Environmental Review
Seven comments were received. Two commenters requested that
participating jurisdictions be authorized to use substantially
equivalent State or local environmental law and review procedures in
place of NEPA (statutory). Four commenters requested that States be
authorized to assume responsibility for the release of funds based on
environmental reviews and certifications completed by State recipients
and State CHDOs. The current procedure requiring States to request
funds release from HUD delays projects.
Four commenters requested that 1-4 unit projects and all owner-
occupied homeownership projects be exempt from environmental review
(statutory). Two commenters requested that historic preservation
reviews be waived for emergency repairs. Two commenters requested that
one environmental review and funds release process be allowed for
projects receiving both HOME and CDBG funds.
One commenter found current requirements unduly restrictive
concerning options. The commenter noted that the Department allows
options to be undertaken prior to environmental review, when a full
refund of the option fee is provided if the project does not go
forward. However, the commenter noted that such a scenario is unlikely
in real estate transactions. The commenter urged that options be
treated as other initial feasibility actions, in that options allow the
developer to secure the right, but not the obligation to purchase a
site. The commenter also requested that options purchased with non-
federal funds be permitted prior to environmental review, even if HOME
funds will be subsequently used.
Environmental review requirements are subject to separate
rulemaking under 24 CFR 58. Part 58 currently authorizes States to
exercise HUD's responsibilities with respect to approval of a State
recipient's environmental certification and RROF. However, when a State
elects to directly undertake the HOME program, HUD provides the second
level of review. Therefore, States must submit their certification and
RROF to HUD. Part 58 has been revised to allow purchase options prior
to the completion of an environmental review, if the option agreement
is subject to a determination by the recipient of the desirability of
the property following the environmental review and the option cost
reflects a nominal portion of the purchase price. Participating
jurisdictions may currently conduct a single environmental review and
submit a single RROF for projects funded with both CDBG and HOME,
provided the separate funding sources are identified.
Section 92.353 Displacement, Relocation and Acquisition
Four comments were received on this section. Two commenters
recommend altering the Uniform Relocation Act requirements for tenants
displaced by HOME or CDBG-financed activity. They view benefits for a
five year period as overly generous and suggest that the benefits be
for two years and be paid once at the capitalized value of the
benefits.
The calculation of benefits is based on explicit statutory
language. Persons whose displacement is subject to the Uniform
Relocation Act (URA) are entitled to an amount that is 42 times the
difference between their rent at the unit from which they are displaced
and the comparable unit they are offered (or 42 times the difference
between 30% of household income and the rent at the comparable unit, if
that results in a larger payment). For low and moderate income persons
whose displacement is subject to section 104(d) of the Housing and
Community Development Act of 1974, the payment is calculated to assure
that their post-relocation shelter costs do not exceed 30% of income
for five years. Since these benefit levels are set by statute, the
Department has no authority to change them.
Two commenters strongly recommended that the URA requirements be
simplified for homeownership situations. Current rules require that the
participating jurisdiction notify the sellers of the property that the
property is not being acquired under eminent domain and that they are
not eligible for relocation benefits. Additionally, if the unit being
offered for sale is occupied by a tenant, relocation benefits would be
triggered. It was recommended that homebuyer programs be exempt from
relocation requirements when the participating jurisdiction has no role
in determining which house is selected by the buyer when it is offered
for sale on the open market.
When HOME funds are used for homeownership programs, the property
purchased is a Federally-assisted acquisition. Thus, it is subject to
the provisions of the URA, and sellers and displaced tenants must be
accorded certain rights and benefits. Although the selling homeowner is
not entitled to relocation benefits, it is necessary to inform the
seller that the purchaser does not have the power of eminent domain and
of the estimate of fair market value. These actions are necessary to
meet the URA requirements of section 301 (2) and (3). If there are
tenants in the home, they are entitled to the standard URA benefits.
Since these are statutory requirements, the Department cannot change or
waive them.
Section 92.354 Labor
Nine comments were received on this section of the rule. Four
commenters suggested eliminating the Davis-Bacon requirements for the
HOME Program, and if not eliminated completely, at least conforming the
requirements to CDBG in that land acquisition with HOME would not
trigger Davis Bacon requirements. It was also suggested that some
substantial dollar amount trigger Davis-Bacon (statutory).
Two commenters suggested that Davis Bacon requirements not be
applied to homeownership projects when the units are sold to individual
homebuyers.
[[Page 48748]]
Two commenters complained about the substantial administrative
burden of the requirements and how that discourages small, local
contractors from participating in contradiction to the Section 3 goals
and requirements.
Davis-Bacon requirements apply to twelve or more HOME-assisted
units under one construction contract, whether rental or homeowner.
Small, local contractors can work on single family units or small
rental projects while gaining experience before taking on a larger
project with Davis Bacon requirements.
Section 92.356 Conflict of Interest
The third change in the July 12, 1995 proposed rule, the
application of conflict of interest rules to developers, whether for
profit or nonprofit, of projects receiving HOME funds elicited sixteen
comments. Eleven commenters endorsed the application of the
requirements either totally or with qualifications relating to
occupancy of resident managers or income-qualified CHDO board members.
Five commenters opposed the application of the requirements as too
burdensome and intrusive on the participating jurisdiction's
administration of the program.
The Department believes that the positive comments outweigh the
negative ones and has adopted the conflict of interest provisions for
developers, both profit and nonprofit, that receive HOME funds. The
determination of a conflict is made at the State or local level and
does not involve the Department, unlike the procedure when the conflict
involves an official or an employee of the participating jurisdictions,
its State recipients or subrecipients.
Subpart K--Program Administration
Section 92.502 C/MIS: Disbursement of HOME Funds
Five parties commented on C/MI and disbursement-related issues. All
of the commenters suggested ways in which they believed the Department
could simplify or streamline the current system. Three commenters
recommended that the Department eliminate or relax the requirement that
HOME funds drawn from the Treasury account be expended for eligible
costs within 15 days (statutory). One of the commenters suggested
extending the period to 30 days. Two commenters recommended that
participating jurisdictions be allowed to draw lump sums for projects
and place the funds in escrow accounts (statutory).
Three commenters requested that participating jurisdictions be
permitted to draw down lump sums of HOME funds for long-term relocation
expenses. One commenter stated that long-term relocation obligations
prevented it from sending in project completion forms. Both commenters
believed that the five-year deadline for the expenditure of funds would
elapse before participating jurisdictions had completed monthly
payments for relocation.
Existing policies should be adequate to permit required payments of
relocation benefits without delaying project completion. Although
relocation benefits to displaced tenants may be calculated to assist
them with their shelter costs for as long as 5 years, the Department
does not require that monthly payments be made for such a period.
Although a single lump sum payment of benefits is prohibited by statute
(except where down payment assistance is involved), the Department
allows great latitude to displacing agencies in setting up the payout
of the assistance. For example, quarterly or semi-annual payments could
be made for a period deemed reasonable by the participating
jurisdiction, at the end of which the balance could be paid to the
displaced person.
One commenter noted that the Department needs to reduce the
complexity of drawing down funds and decrease the time that it takes
project set-up forms faxed to HUD to be entered into the system. The
commenter suggested that the Department adopt the Payment Management
System used by the Department of Health and Human Services.
Two commenters stated that the reports generated by the C/MIS
should be useful and user friendly. One commenter suggested that the C/
MIS operating hours being changed to accommodate participating
jurisdictions in western time zones.
One commenter suggested that CHDOs be permitted to set up their own
accounts in the C/MIS.
The same commenter suggested that subrecipients be permitted to
have their own U.S. Treasury accounts and draw HOME funds directly from
the Treasury.
Two commenters suggested that the new Integrated Data and
Information System (IDIS) being developed by the Department for HOME
and other programs allow participating jurisdictions to set up HOME
funds for broad activities (e.g., rehabilitation) rather than on a
project-by-project basis. One of these commenters recommended that
information on families receiving HOME tenant-based rental assistance
(i.e., social security number, tenant contribution, amount of subsidy)
be included as part of a project completion report rather than at set-
up.
There currently is no project completion form required for TBRA.
The new Integrated Data and Information system (IDIS) will continue to
collect data on a project basis. Only participating jurisdictions and
state recipients are permitted to have HOME funds deposited directly
into their own bank accounts (statutory).
Three commenters requested that participating jurisdictions be
permitted to accumulate significant amounts of program income in their
local HOME accounts before being required to expend the funds.
Currently, participating jurisdictions are required to disburse program
income on hand before drawing any additional funds from the U.S.
Treasury. The commenters contend that this results in administrative
burden, particularly when only small amounts of program income are on
hand.
This is an OMB and Treasury Department requirement for all Federal
programs under part 85, not a HOME regulatory requirement. Our current
(nonregulatory) guidance to participating jurisdictions is that they
may undertake a periodic accounting of program income whenever their
financial reports are normally available and spend those funds before
drawing additional Federal funds.
One commenter objected to the requirement at Sec. 92.502(g) that
requires States to designate the local PJ as a State recipient and
suballocate its HOME funds when a State and local PJ undertake a
jointly funded project.
This requirement has been dropped and State and local participating
jurisdictions can each set up a project for its share of the funds and
report on the proportionate number of units.
Another commenter expressed concern about jointly funded projects
undertaken by CHDOs. The commenter believes that the State funds
suballocated to a local participating jurisdiction is credited to that
jurisdiction, rather than the State.
This is not the case. The State funds retain their identity, so all
expenditures and production information related to the State's share of
the project are included in the State's report.
Section 92.503 Program Income, Repayments, and Recaptured Funds
In response to many public comments and numerous requests for
clarification, the Department has created a new section describing
program income, repayments and funds that are recaptured. In prior
rules, program
[[Page 48749]]
income has often been described as a return on the investment of HOME
funds. This section hopefully will provide adequate guidance to
participating jurisdiction on these issues.
Section 92.504 PJ Responsibilities; Written Agreements; Monitoring
The Department has substantially revised this section to be more
specific about the contents of the written agreement between the
participating jurisdiction and the entity receiving the HOME funds. The
revisions were done in response to many comments requesting
clarification about the contents of the agreement.
Six comments were received regarding the HOME monitoring
requirements at Sec. 92.504(e). All of the commenters felt that the
current requirements were too burdensome and should be changed.
Two commenters suggested that the HOME monitoring requirements be
changed to conform with the LIHTC monitoring requirements, which they
felt offered more flexibility in determining the number of tenant files
reviewed and the frequency of on-site visits. One commenter suggested
that less information should be required from tenants whose rents are
close to market rents than from those who receive a significant
subsidy. The commenter suggests a single pay stub as proof of low-
income status.
Two commenters felt that participating jurisdictions should be
permitted to develop their own monitoring plans to assure project
compliance with HOME requirements. One of these commenters suggested
that these plans could be subject to HUD approval.
Another commenter suggested that HUD, in place of the current
monitoring provisions, require participating jurisdictions to develop
monitoring plans that include an initial on-site inspection, biannual
on-site financial and management reviews and remote monitoring of
tenant files and financial statements in alternate years. One commenter
recommended that HOME rental projects be monitored every two years
rather than annually, regardless of the size of the project.
The Department has provided options with regard to determining
tenant income during the period of affordability which are discussed
under the preamble comments at Sec. 92.203.
With regard to monitoring requirements, the Department has created
additional flexibility in the schedule for on-site inspections of
smaller projects as permitted by the statute.
One commenter stated that the Department should eliminate the
requirement that, when a PJ applies a longer period of affordability
period to a project than is required by HUD, monitoring of the project
continue for the extended affordability period.
There is no such requirement.
One commenter suggested that, when a project is found to be out of
compliance with HOME requirements and the participating jurisdiction is
unable to obtain timely repayment from the owner, the Department reduce
the participating jurisdictions future grants rather than require
repayment to the HOME account.
The Department declines to make this change because it reduces
funds available to provide affordable housing but will review cases as
necessary to determine appropriate action.
Section 92.506 Audits
One commenter wrote in support of the Office of Management and
Budget's efforts to increase the threshold for audits from $25,000 to
$300,000.
A bill has been proposed to make this change but has not been
enacted.
Section 92.508 Recordkeeping
The Department has revised this section to ensure consistency with
the requirements of Part 92. In addition, the period for record
retention has been extended to five years in keeping with the Part 91
Consolidated Plan requirement. In response to comments, the Department
has clarified the record retention period for various types of records.
The Department has clarified that certain records do not have to be
retained for the full period of affordability for rental projects.
Section 92.552 Notice and Opportunity for Hearing; Sanctions
The Department recently published a proposed regulation at 61 FR
18026 (April 23, 1996) setting forth hearing procedures for formal
hearings according to the Administrative Procedures Act (5 U.S.C. 551
et seq.). The Department intends to adopt these hearing procedures for
the HOME program. Conforming changes to the HOME regulations will be
made when the final rule for Part 26 is published.
Conforming Changes to Part 91
The Department has made conforming changes to 24 CFR part 91, the
Consolidated Plan. If a participating jurisdiction chooses to refinance
existing debt in connection with the rehabilitation of multifamily
properties, it would be required to develop guidelines which would
describe under what conditions it would permit the use of HOME funds
for refinancing. The guidelines would be made part of the participating
jurisdiction's consolidated plan and be subject to public review and
comment.
Extension of Interim Rule
Section 92.5 of the interim rule was added to implement a
Department-wide policy for the expiration of interim rules within a set
period of time if they are not issued in final form before the end of
the period. This section also provides that the expiration period may
be extended by notice published in the Federal Register, and the
Department is hereby providing notice that the interim rule remains in
effect without interruption until the effective date of this final
rule.
III. Findings and Certifications
Paperwork Reduction Act. The information collection requirements
for the HOME Investment Partnerships Program have been approved by the
Office of Management and Budget in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520), and assigned OMB control
number 2577-0191. This final rule does not contain additional mandatory
information collection requirements, but does contain additional
voluntary information collection requirements in Secs. 92.206 and
92.254. When received, the OMB approval number for these information
collection requirements will be published in a separate notice in the
Federal Register. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless the
collection displays a valid control number.
Unfunded Mandates Reform Act. Title II of the Unfunded Mandates
Reform Act of 1995 establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, local
and tribal governments and the private sector. This rule does not
impose any Federal mandates on any State, local or tribal governments
or the private sector within the meaning of the Unfunded Mandates
Reform Act of 1995.
Environmental Review. A Finding of No Significant Impact with
respect to the environment has been made in accordance with HUD
regulations at 24 CFR part 50, which implement section 102(2)(C) of the
National Environmental Policy Act of 1969. The Finding of No
Significant Impact is available for public inspection between 7:30 a.m.
and 5:30
[[Page 48750]]
p.m. weekdays in the Office of the Rules Docket Clerk.
Regulatory Planning and Review. This rule has been reviewed in
accordance with Executive Order 12866, issued by the President on
September 30, 1993 (58 FR 51735, October 4, 1993). Any changes to the
rule resulting from this review are available for public inspection
between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules
Docket Clerk.
Impact on Small Entities. The Secretary, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) has reviewed and approved
this rule, and in so doing certifies that this rule will not have a
significant economic impact on a substantial number of small entities,
because jurisdictions that are statutorily eligible to receive formula
allocations are relatively larger cities, counties or States.
Federalism Impact. The General Counsel has determined, as the
Designated Official for HUD under section 6(a) of Executive Order
12612, Federalism, that this rule does not have federalism implications
concerning the division of local, State, and federal responsibilities.
While the HOME Program interim rule was determined to be a rule with
federalism implications and the Department submitted a Federalism
Assessment concerning the interim rule to OMB, this final rule only
makes limited adjustments to the interim rule and does not
significantly affect any of the factors considered in the Federalism
Assessment for the interim rule.
Impact on the Family. The General Counsel, as the designated
official under Executive Order 12606, The Family, has determined that
this rule would not have significant impact on family formation,
maintenance, and general well-being. Assistance provided under this
rule can be expected to support family values, by helping families
achieve security and independence; by enabling them to live in decent,
safe, and sanitary housing; and by giving them the means to live
independently in mainstream American society. This rule would not,
however, affect the institution of the family, which is requisite to
coverage by the Order.
The Catalog of Federal Domestic Assistance Number for the HOME
Program is 14.239.
List of Subjects
24 CFR Part 91
Aged, Grant programs--housing and community development, Homeless,
Individuals with disabilities, Low- and moderate-income housing,
Reporting and recordkeeping requirements.
24 CFR Part 92
Grant programs--housing and community development, Manufactured
homes, Rent subsidies, Reporting and recordkeeping requirements.
Accordingly, the Department amends parts 91 and 92 of title 24 of
the Code of Federal Regulations as follows:
PART 91--CONSOLIDATED SUBMISSIONS FOR COMMUNITY PLANNING AND
DEVELOPMENT PROGRAMS
1. The authority citation for part 91 continues to read as follows:
Authority: 42 U.S.C. 3535(d), 3601-3619, 5301-5315, 11331-11388,
12701-12711, 12741-12756, and 12901-12912.
2. Section 91.220 is amended by adding a new paragraph (g)(2)(iii),
to read as follows:
Sec. 91.220 Action plan.
* * * * *
(g) * * *
(2) * * *
(iii) If the participating jurisdiction intends to use HOME funds
to refinance existing debt secured by multifamily housing that is being
rehabilitated with HOME funds, it must state its refinancing guidelines
required under 24 CFR 92.206(b). The guidelines shall describe the
conditions under which the participating jurisdictions will refinance
existing debt. At minimum, the guidelines must:
(A) Demonstrate that rehabilitation is the primary eligible
activity and ensure that this requirement is met by establishing a
minimum level of rehabilitation per unit or a required ratio between
rehabilitation and refinancing.
(B) Require a review of management practices to demonstrate that
disinvestment in the property has not occurred; that the long term
needs of the project can be met; and that the feasibility of serving
the targeted population over an extended affordability period can be
demonstrated.
(C) State whether the new investment is being made to maintain
current affordable units, create additional affordable units, or both.
(D) Specify the required period of affordability, whether it is the
minimum 15 years or longer.
(E) Specify whether the investment of HOME funds may be
jurisdiction-wide or limited to a specific geographic area, such as a
neighborhood identified in a neighborhood revitalization strategy under
24 CFR 91.215(e)(2) or a Federally designated Empowerment Zone or
Enterprise Community.
(F) State that HOME funds cannot be used to refinance multifamily
loans made or insured by any Federal program, including CDBG.
3. Section 91.320 is amended by adding a new paragraph (g)(2)(iii),
to read as follows:
Sec. 91.320 Action plan.
* * * * *
(g) * * *
(2) * * *
(iii) If the State intends to use HOME funds to refinance existing
debt secured by multifamily housing that is being rehabilitated with
HOME funds, it must state its refinancing guidelines required under 24
CFR 92.206(b). The guidelines shall describe the conditions under which
the State will refinance existing debt. At minimum, the guidelines
must:
(A) Demonstrate that rehabilitation is the primary eligible
activity and ensure that this requirement is met by establishing a
minimum level of rehabilitation per unit or a required ratio between
rehabilitation and refinancing.
(B) Require a review of management practices to demonstrate that
disinvestment in the property has not occurred; that the long term
needs of the project can be met; and that the feasibility of serving
the targeted population over an extended affordability period can be
demonstrated.
(C) State whether the new investment is being made to maintain
current affordable units, create additional affordable units or both.
(D) Specify the required period of affordability, whether it is the
minimum 15 years or longer.
(E) Specify whether the investment of HOME funds may be
jurisdiction-wide or limited to a specific geographic area, such as a
neighborhood identified in a neighborhood revitalization strategy under
24 CFR Sec. 91.215(e)(2) or a Federally designated Empowerment Zone or
Enterprise Community.
(F) State HOME funds cannot be used to refinance multifamily loans
made or insured by any Federal program, including CDBG.
4. Part 92 is revised to read as follows:
PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM
Subpart A--General
Sec.
92.1 Overview.
92.2 Definitions.
92.4 Waivers and suspension of requirements for disaster areas.
[[Page 48751]]
Subpart B--Allocation Formula
92.50 Formula allocation.
Insular Areas Program
92.60 Allocation amounts for insular areas.
92.61 Program description.
92.62 Review of program description and certifications.
92.63 Amendments to program description.
92.64 Applicability of requirements to insular areas.
92.65 Funding sanctions.
92.66 Reallocation.
Subpart C--Consortia; Designation and Revocation of Designation as a
Participating Jurisdiction
92.100 [Reserved]
92.101 Consortia.
92.102 Participation threshold amount.
92.103 Notification of intent to participate.
92.104 Submission of a consolidated plan.
92.105 Designation as a participating jurisdiction.
92.106 Continuous designation as a participating jurisdiction.
92.107 Revocation of designation as a participating jurisdiction.
Subpart D--Submission Requirements
92.150 Submission requirements.
Subpart E--Program Requirements
92.200 Private-public partnership.
92.201 Distribution of assistance.
92.202 Site and neighborhood standards.
92.203 Income determinations.
92.204 Applicability of requirements to entities that receive a
reallocation of HOME funds, other than participating jurisdictions.
Eligible and Prohibited Activities
92.205 Eligible activities: General.
92.206 Eligible project costs.
92.207 Eligible administrative and planning costs.
92.208 Eligible community housing development organization (CHDO)
operating expense and capacity building costs.
92.209 Tenant-based rental assistance: Eligible costs and
requirements.
92.212 Pre-award costs.
92.213 [Reserved]
92.214 Prohibited activities.
92.215 Limitation on jurisdictions under court order.
Income Targeting
92.216 Income targeting: Tenant-based rental assistance and rental
units.
92.217 Income targeting: Homeownership.
Matching Contribution Requirement
92.218 Amount of matching contribution.
92.219 Recognition of matching contribution.
92.220 Form of matching contribution.
92.221 Match credit.
92.222 Reduction of matching contribution requirement.
Subpart F--Project Requirements
92.250 Maximum per-unit subsidy amount and subsidy layering.
92.251 Property standards.
92.252 Qualification as affordable housing: Rental housing.
92.253 Tenant and participant protections.
92.254 Qualification as affordable housing: Homeownership.
92.255 Converting rental units to homeownership units for existing
tenants.
92.256 [Reserved].
92.257 Religious organizations.
92.258 Elder cottage housing opportunity (ECHO) units.
Subpart G--Community Housing Development Organizations
92.300 Set-aside for community housing development organizations
(CHDOs).
92.301 Project-specific assistance to community housing development
organizations.
92.302 Housing education and organizational support.
92.303 Tenant participation plan.
Subpart H--Other Federal Requirements
92.350 Other Federal requirements.
92.351 Affirmative marketing; minority outreach program.
92.352 Environmental review.
92.353 Displacement, relocation, and acquisition.
92.354 Labor.
92.355 Lead-based paint.
92.356 Conflict of interest.
92.357 Executive Order 12372.
Subpart I--Technical Assistance
92.400 Coordinated Federal support for housing strategies.
Subpart J--Reallocations
92.450 General.
92.451 Reallocation of HOME funds from a jurisdiction that is not
designated a participating jurisdiction or has its designation
revoked.
92.452 Reallocation of community housing development organization
set-aside.
92.453 Criteria for competitive reallocations.
92.454 Reallocations by formula.
Subpart K--Program Administration
92.500 The HOME Investment Trust Fund.
92.501 HOME Investment Partnership Agreement.
92.502 Program disbursement and information system.
92.503 Program income, repayments, and recaptured funds.
92.504 Participating jurisdiction responsibilities; written
agreements; on-site inspections.
92.505 Applicability of uniform administrative requirements.
92.506 Audit.
92.507 Closeout.
92.508 Recordkeeping.
92.509 Performance reports.
Subpart L--Performance Reviews and Sanctions
92.550 Performance reviews.
92.551 Corrective and remedial actions.
92.552 Notice and opportunity for hearing; sanctions.
Authority: 42 U.S.C. 3535(d) and 12701-12839.
Subpart A--General
Sec. 92.1 Overview.
This part implements the HOME Investment Partnerships Act (the HOME
Investment Partnerships Program). In general, under the HOME Investment
Partnerships Program, HUD allocates funds by formula among eligible
State and local governments to strengthen public-private partnerships
and to expand the supply of decent, safe, sanitary, and affordable
housing, with primary attention to rental housing, for very low-income
and low-income families. Generally, HOME funds must be matched by
nonfederal resources. State and local governments that become
participating jurisdictions may use HOME funds to carry out multi-year
housing strategies through acquisition, rehabilitation, and new
construction of housing, and tenant-based rental assistance.
Participating jurisdictions may provide assistance in a number of
eligible forms, including loans, advances, equity investments, interest
subsidies and other forms of investment that HUD approves.
Sec. 92.2 Definitions.
The terms ``1937 Act'', ``ALJ'', ``Fair Housing Act'', ``HUD'',
``Indian Housing Authority (IHA)'', ``Public Housing Agency (PHA)'',
and ``Secretary'' are defined in 24 CFR 5.100.
Act means the HOME Investment Partnerships Act at title II of the
Cranston-Gonzalez National Affordable Housing Act, as amended, 42
U.S.C. 12701 et seq.
Adjusted income. See Sec. 92.203.
Annual income. See Sec. 92.203.
Certification shall have the meaning provided in section 104(21) of
the Cranston-Gonzalez National Affordable Housing Act, as amended, 42
U.S.C. 12704.
Commitment means:
(1) The participating jurisdiction has executed a legally binding
agreement with a State recipient, a subrecipient or a contractor to use
a specific amount of HOME funds to produce affordable housing or
provide tenant-based rental assistance; or has executed a written
agreement reserving a specific amount of funds to a community housing
development organization; or has met the requirements to commit to a
specific local project, as defined in paragraph (2), of this
definition.
(2) Commit to a specific local project means:
(i) If the project consists of rehabilitation or new construction
(with
[[Page 48752]]
or without acquisition) the participating jurisdiction (or State
recipient or subrecipient) and project owner have executed a written
legally binding agreement under which HOME assistance will be provided
to the owner for an identifiable project under which construction can
reasonably be expected to start within twelve months of the agreement
date. If the project is owned by the participating jurisdiction or
State recipient, the project has been set up in the disbursement and
information system established by HUD, and construction can reasonably
be expected to start within twelve months of the project set-up date.
(ii)(A) If the project consists of acquisition of standard housing
and the participating jurisdiction (or State recipient or subrecipient)
is acquiring the property with HOME funds, the participating
jurisdiction (or State recipient or subrecipient) and the property
owner have executed a legally binding contract for sale of an
identifiable property and the property title will be transferred to the
participating jurisdiction (or State recipient or subrecipient) within
six months of the date of the contract.
(B) If the project consists of acquisition of standard housing and
the participating jurisdiction (or State recipient or subrecipient) is
providing HOME funds to a family to acquire single family housing for
homeownership or to a purchaser to acquire rental housing, the
participating jurisdiction (or State recipient or subrecipient) and the
family or purchaser have executed a written agreement under which HOME
assistance will be provided for the purchase of the single family
housing or rental housing and the property title will be transferred to
the family or purchaser within six months of the agreement date.
(iii) If the project consists of tenant-based rental assistance,
the participating jurisdiction (or State recipient, or subrecipient)
has entered into a rental assistance contract with the owner or the
tenant in accordance with the provisions of Sec. 92.209.
Community housing development organization means a private
nonprofit organization that:
(1) Is organized under State or local laws;
(2) Has no part of its net earnings inuring to the benefit of any
member, founder, contributor, or individual;
(3) Is neither controlled by, nor under the direction of,
individuals or entities seeking to derive profit or gain from the
organization. A community housing development organization may be
sponsored or created by a for-profit entity, but:
(i) The for-profit entity may not be an entity whose primary
purpose is the development or management of housing, such as a builder,
developer, or real estate management firm.
(ii) The for-profit entity may not have the right to appoint more
than one-third of the membership of the organization's governing body.
Board members appointed by the for-profit entity may not appoint the
remaining two-thirds of the board members; and
(iii) The community housing development organization must be free
to contract for goods and services from vendors of its own choosing;
(4) Has a tax exemption ruling from the Internal Revenue Service
under section 501(c) (3) or (4) of the Internal Revenue Code of 1986
(26 CFR 1.501(c)(3)-1);
(5) Does not include a public body (including the participating
jurisdiction). An organization that is State or locally chartered may
qualify as a community housing development organization; however, the
State or local government may not have the right to appoint more than
one-third of the membership of the organization's governing body and no
more than one-third of the board members may be public officials or
employees of the participating jurisdiction or State recipient. Board
members appointed by the State or local government may not appoint the
remaining two-thirds of the board members;
(6) Has standards of financial accountability that conform to 24
CFR 84.21, ``Standards for Financial Management Systems;''
(7) Has among its purposes the provision of decent housing that is
affordable to low-income and moderate-income persons, as evidenced in
its charter, articles of incorporation, resolutions or by-laws;
(8) Maintains accountability to low-income community residents by:
(i) Maintaining at least one-third of its governing board's
membership for residents of low-income neighborhoods, other low-income
community residents, or elected representative of low-income
neighborhood organizations. For urban areas, ``community'' may be a
neighborhood or neighborhoods, city, county or metropolitan area; for
rural areas, it may be a neighborhood or neighborhoods, town, village,
county, or multi-county area (but not the entire State); and
(ii) Providing a formal process for low-income program
beneficiaries to advise the organization in its decisions regarding the
design, siting, development, and management of affordable housing;
(9) Has a demonstrated capacity for carrying out activities
assisted with HOME funds. An organization may satisfy this requirement
by hiring experienced key staff members who have successfully completed
similar projects, or a consultant with the same type of experience and
a plan to train appropriate key staff members of the organization; and
(10) Has a history of serving the community within which housing to
be assisted with HOME funds is to be located. In general, an
organization must be able to show one year of serving the community
before HOME funds are reserved for the organization. However, a newly
created organization formed by local churches, service organizations or
neighborhood organizations may meet this requirement by demonstrating
that its parent organization has at least a year of serving the
community.
Family has the same meaning given that term in 24 CFR 5.403.
HOME funds means funds made available under this part through
allocations and reallocations, plus program income.
Homeownership means ownership in fee simple title or a 99 year
leasehold interest in a one- to four-unit dwelling or in a condominium
unit, or equivalent form of ownership approved by HUD. The ownership
interest may be subject only to the restrictions on resale required
under Sec. 92.254(a); mortgages, deeds of trust, or other liens or
instruments securing debt on the property as approved by the
participating jurisdiction; or any other restrictions or encumbrances
that do not impair the good and marketable nature of title to the
ownership interest. For purposes of the insular areas, homeownership
includes leases of 40 years or more. The participating jurisdiction
must determine whether or not ownership or membership in a cooperative
or mutual housing project constitutes homeownership under State law.
Household means one or more persons occupying a housing unit.
Housing includes manufactured housing and manufactured housing
lots, permanent housing for disabled homeless persons, transitional
housing, single-room occupancy housing, and group homes. Housing also
includes elder cottage housing opportunity (ECHO) units that are small,
free-standing, barrier-free, energy-efficient, removable, and designed
to be installed adjacent to existing single-family dwellings. Housing
does not include emergency shelters (including shelters
[[Page 48753]]
for disaster victims) or facilities such as nursing homes, convalescent
homes, hospitals, residential treatment facilities, correctional
facilities and student dormitories.
Insular areas means Guam, the Northern Mariana Islands, the United
States Virgin Islands, and American Samoa.
Jurisdiction means a State or unit of general local government.
Low-income families means families whose annual incomes do not
exceed 80 percent of the median income for the area, as determined by
HUD with adjustments for smaller and larger families, except that HUD
may establish income ceilings higher or lower than 80 percent of the
median for the area on the basis of HUD findings that such variations
are necessary because of prevailing levels of construction costs or
fair market rents, or unusually high or low family incomes.
Metropolitan city has the meaning given the term in 24 CFR 570.3.
Neighborhood means a geographic location designated in
comprehensive plans, ordinances, or other local documents as a
neighborhood, village, or similar geographical designation that is
within the boundary but does not encompass the entire area of a unit of
general local government; except that if the unit of general local
government has a population under 25,000, the neighborhood may, but
need not, encompass the entire area of a unit of general local
government.
Participating jurisdiction means a jurisdiction (as defined in this
section) that has been so designated by HUD in accordance with
Sec. 92.105.
Person with disabilities means a household composed of one or more
persons, at least one of whom is an adult, who has a disability.
(1) A person is considered to have a disability if the person has a
physical, mental, or emotional impairment that:
(i) Is expected to be of long-continued and indefinite duration;
(ii) Substantially impedes his or her ability to live
independently; and
(iii) Is of such a nature that such ability could be improved by
more suitable housing conditions.
(2) A person will also be considered to have a disability if he or
she has a developmental disability, which is a severe, chronic
disability that:
(i) Is attributable to a mental or physical impairment or
combination of mental and physical impairments;
(ii) Is manifested before the person attains age 22;
(iii) Is likely to continue indefinitely;
(iv) Results in substantial functional limitations in three or more
of the following areas of major life activity: self-care, receptive and
expressive language, learning, mobility, self-direction, capacity for
independent living, and economic self-sufficiency; and
(v) Reflects the person's need for a combination and sequence of
special, interdisciplinary, or generic care, treatment, or other
services that are of lifelong or extended duration and are individually
planned and coordinated. Notwithstanding the preceding provisions of
this definition, the term ``person with disabilities'' includes two or
more persons with disabilities living together, one or more such
persons living with another person who is determined to be important to
their care or well-being, and the surviving member or members of any
household described in the first sentence of this definition who were
living, in a unit assisted with HOME funds, with the deceased member of
the household at the time of his or her death.
Program income means gross income received by the participating
jurisdiction, State recipient, or a subrecipient directly generated
from the use of HOME funds or matching contributions. When program
income is generated by housing that is only partially assisted with
HOME funds or matching funds, the income shall be prorated to reflect
the percentage of HOME funds used. Program income includes, but is not
limited to, the following:
(1) Proceeds from the disposition by sale or long-term lease of
real property acquired, rehabilitated, or constructed with HOME funds
or matching contributions;
(2) Gross income from the use or rental of real property, owned by
the participating jurisdiction, State recipient, or a subrecipient,
that was acquired, rehabilitated, or constructed, with HOME funds or
matching contributions, less costs incidental to generation of the
income;
(3) Payments of principal and interest on loans made using HOME
funds or matching contributions;
(4) Proceeds from the sale of loans made with HOME funds or
matching contributions;
(5) Proceeds from the sale of obligations secured by loans made
with HOME funds or matching contributions;
(6) Interest earned on program income pending its disposition; and
(7) Any other interest or return on the investment permitted under
Sec. 92.205(b) of HOME funds or matching contributions.
Project means a site or sites together with any building (including
a manufactured housing unit) or buildings located on the site(s) that
are under common ownership, management, and financing and are to be
assisted with HOME funds as a single undertaking under this part. The
project includes all the activities associated with the site and
building. For tenant-based rental assistance, project means assistance
to one or more families.
Project completion means that all necessary title transfer
requirements and construction work have been performed; the project
complies with the requirements of this part (including the property
standards under Sec. 92.251); the final drawdown has been disbursed for
the project; and the project completion information has been entered in
the disbursement and information system established by HUD. For tenant-
based rental assistance, project completion means the final drawdown
has been disbursed for the project.
Reconstruction means the rebuilding, on the same lot, of housing
standing on a site at the time of project commitment. The number of
housing units on the lot may not be decreased or increased as part of a
reconstruction project, but the number of rooms per unit may be
increased or decreased. Reconstruction also includes replacing an
existing substandard unit of manufactured housing with a new or
standard unit of manufactured housing. Reconstruction is rehabilitation
for purposes of this part.
Single room occupancy (SRO) housing means housing (consisting of
single room dwelling units) that is the primary residence of its
occupant or occupants. The unit must contain either food preparation or
sanitary facilities (and may contain both) if the project consists of
new construction, conversion of non-residential space, or
reconstruction. For acquisition or rehabilitation of an existing
residential structure or hotel, neither food preparation nor sanitary
facilities are required to be in the unit. If the units do not contain
sanitary facilities, the building must contain sanitary facilities that
are shared by tenants.
State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or any agency or
instrumentality thereof that is established pursuant to legislation and
designated by the chief executive officer to act on behalf of the State
with regard to the provisions of this part.
State recipient. See Sec. 92.201(b)(2).
Subrecipient means a public agency or nonprofit organization
selected by the participating jurisdiction to administer all or a
portion of the participating jurisdiction's HOME program. A public
[[Page 48754]]
agency or nonprofit organization that receives HOME funds solely as a
developer or owner of housing is not a subrecipient. The participating
jurisdiction's selection of a subrecipient is not subject to the
procurement procedures and requirements.
Tenant-based rental assistance is a form of rental assistance in
which the assisted tenant may move from a dwelling unit with a right to
continued assistance. Tenant-based rental assistance under this part
also includes security deposits for rental of dwelling units.
Transitional housing means housing that:
(1) Is designed to provide housing and appropriate supportive
services to persons, including (but not limited to) deinstitutionalized
individuals with disabilities, homeless individuals with disabilities,
and homeless families with children; and
(2) Has as its purpose facilitating the movement of individuals and
families to independent living within a time period that is set by the
participating jurisdiction or project owner before occupancy.
Unit of general local government means a city, town, township,
county, parish, village, or other general purpose political subdivision
of a State; a consortium of such political subdivisions recognized by
HUD in accordance with Sec. 92.101; and any agency or instrumentality
thereof that is established pursuant to legislation and designated by
the chief executive to act on behalf of the jurisdiction with regard to
provisions of this part. When a county is an urban county, the urban
county is the unit of general local government for purposes of the HOME
Investment Partnerships Program.
Urban county has the meaning given the term in 24 CFR 570.3.
Very low-income families means low-income families whose annual
incomes do not exceed 50 percent of the median family income for the
area, as determined by HUD with adjustments for smaller and larger
families, except that HUD may establish income ceilings higher or lower
than 50 percent of the median for the area on the basis of HUD findings
that such variations are necessary because of prevailing levels of
construction costs or fair market rents, or unusually high or low
family incomes.
Sec. 92.4 Waivers and suspension of requirements for disaster areas.
HUD's authority for waiver of regulations and for the suspension of
requirements to address damage in a Presidentially declared disaster
area is described in 24 CFR 5.110 and in section 290 of the Act,
respectively.
Subpart B--Allocation Formula
Sec. 92.50 Formula allocation.
(a) Jurisdictions eligible for a formula allocation. HUD will
provide allocations of funds in amounts determined by the formula
described in this section to units of general local governments that,
as of the end of the previous fiscal year, are metropolitan cities,
urban counties, or consortia approved under Sec. 92.101; and States.
(b) Amounts available for allocation; State and local share. The
amount of funds that are available for allocation by the formula under
this section is equal to the balance of funds remaining after reserving
amounts for Indian tribes, insular areas, housing education and
organizational support, other support for State and local housing
strategies, and other purposes authorized by Congress, in accordance
with the Act and appropriations.
(c) Formula factors. The formula for determining allocations uses
the following factors. The first and sixth factors are weighted 0.1;
the other four factors are weighted 0.2.
(1) Vacancy-adjusted rental units where the household head is at or
below the poverty level. These rental units are multiplied by the ratio
of the national rental vacancy rate over a jurisdiction's rental
vacancy rate.
(2) Occupied rental units with at least one of four problems
(overcrowding, incomplete kitchen facilities, incomplete plumbing, or
high rent costs). Overcrowding is a condition that exists if there is
more than one person per room occupying the unit. Incomplete kitchen
facilities means the unit lacks a sink with running water, a range, or
a refrigerator. Incomplete plumbing means the unit lacks hot and cold
piped water, a flush toilet, or a bathtub or shower inside the unit for
the exclusive use of the occupants of the unit. High rent costs occur
when more than 30 percent of household income is used for rent.
(3) Rental units built before 1950 occupied by poor families.
(4) Rental units described in paragraph (c)(2) of this section
multiplied by the ratio of the cost of producing housing for a
jurisdiction divided by the national cost.
(5) Number of families at or below the poverty level.
(6) Population of a jurisdiction multiplied by a net per capita
income (pci). To compute net pci for a jurisdiction or for the nation,
the pci of a three person family at the poverty threshold is subtracted
from the pci of the jurisdiction or of the nation. The index is
constructed by dividing the national net pci by the net pci of a
jurisdiction.
(d) Calculating formula allocations for units of general local
government. (1) Initial allocation amounts for units of general local
government described in paragraph (a)(1) of this section are determined
by multiplying the sum of the shares of the six factors in paragraph
(c) of this section by 60 percent of the amount available under
paragraph (b) of this section for formula allocation. The shares are
the ratio of the weighted factor for each jurisdiction over the
corresponding factor for the total for all of these units of general
local government.
(2) If any of the initial amounts for such units of general local
government in Puerto Rico exceeds twice the national average, on a per
rental unit basis, that amount is capped at twice the national average.
(3) To determine the maximum number of units of general local
government that receive a formula allocation, only one jurisdiction
(the unit of general local government with the smallest allocation of
HOME funds) is dropped from the pool of eligible jurisdictions on each
successive recalculation. Then the amount of funds available for units
of general local government is redistributed to all others. This
recalculation/redistribution continues until all remaining units of
general local government receive an allocation of $500,000 or more.
Only units of general local government which receive an allocation of
$500,000 or more under the formula will be awarded an allocation. In
fiscal years in which Congress appropriates less than $1.5 billion of
HOME funds, $335,000 is substituted for $500,000.
(4) The allocation amounts determined under paragraph (d)(3) of
this section are reduced by any amounts that are necessary to provide
increased allocations to States that have no unit of general local
government receiving a formula allocation (see paragraph (e)(4) of this
section). These reductions are made on a prorata basis, except that no
unit of general local government allocation is reduced below $500,000
(or $335,000 in fiscal years in which Congress appropriates less than
$1.5 billion of HOME funds).
(e) Calculating formula allocations for States. (1) Forty percent
of the funds available for allocation under paragraph (b) of this
section are allocated to States. The allocation amounts for States are
calculated by determining initial amounts for each State, based on the
[[Page 48755]]
sum of the shares of the six factors. For 20 percent of the funds to be
allocated to States, the shares are the ratio of the weighted factor
for the entire State over the corresponding factor for the total for
all States. For 80 percent of the funds to be allocated to States, the
shares are the ratio of the weighted factor for all units of general
local government within the State that do not receive a formula
allocation over the corresponding factor for the total for all States.
(2) If the initial amounts for Puerto Rico (based on either or both
the 80 percent of funds or 20 percent of funds calculation) exceed
twice the national average, on a per rental unit basis, each amount
that exceeds the national average is capped at twice the national
average, and the resultant funds are reallocated to other States on a
prorata basis.
(3) If the initial amounts when combined for any State are less
than the $3,000,000, the allocation to that State is increased to the
$3,000,000 and all other State allocations are reduced by an equal
amount on a prorata basis, except that no State allocation is reduced
below $3,000,000.
(4) The allocation amount for each State that has no unit of
general local government within the State receiving an allocation under
paragraph (d) of this section is increased by $500,000. Funds for this
increase are derived from the funds available for units of general
local government, in accordance with paragraph (d)(4) of this section.
Insular Areas Program
Sec. 92.60 Allocation amounts for insular areas.
(a) Initial allocation amount for each insular area. The initial
allocation amount for each insular area is determined based upon the
insular area's population and occupied rental units compared to all
insular areas.
(b) Threshold requirements. The HUD Field Office shall review each
insular area's progress on outstanding allocations made under this
section, based on the insular area's performance report, the timeliness
of close-outs, and compliance with fund management requirements and
regulations, taking into consideration the size of the allocation and
the degree and complexity of the program. If HUD determines from this
review that the insular area does not have the capacity to administer
effectively a new allocation, or a portion of a new allocation, in
addition to allocations currently under administration, HUD may reduce
the insular area's initial allocation amount.
(c) Previous audit findings and outstanding monetary obligations.
HUD shall not make an allocation to an insular area that has either an
outstanding audit finding for any HUD program, or an outstanding
monetary obligation to HUD that is in arrears, or for which a repayment
schedule has not been established. This restriction does not apply if
the HUD Field Office finds that the insular area has made a good faith
effort to clear the audit and, when there is an outstanding monetary
obligation to HUD, the insular area has made a satisfactory arrangement
for repayment of the funds due HUD and payments are current.
(d) Increases to the initial allocation amount. If funds reserved
for the insular areas are available because HUD has decreased the
amount for one or more insular areas in accordance with paragraphs (b)
or (c) of this section, or for any other reason, HUD may increase the
allocation amount for one or more of the remaining insular areas based
upon the insular area's performance in committing HOME funds within the
24 month deadline, producing housing units described in its program
description, and meeting HOME program requirements. Funds that become
available but which are not used to increase the allocation amount for
one or more of the remaining insular areas will be reallocated in
accordance with Sec. 92.66.
(e) Notice of allocation amounts. HUD will notify each insular
area, in writing, as to the amount of its HOME allocation.
Sec. 92.61 Program description.
(a) Submission requirement. Not later than 90 days after HUD
notifies the insular area of the amount of its allocation, the insular
area must submit a program description and certifications to HUD.
(b) Content of program description. The program description must
contain the following:
(1) An executed Standard Form 424;
(2) The estimated use of HOME funds and a description of projects
and eligible activities, including number of units to be assisted,
estimated costs, and tenure type (rental or owner occupied) and, for
tenant assistance, number of households to be assisted;
(3) A timetable for the implementation of the projects or eligible
activities;
(4) If the insular area intends to use HOME funds for homebuyers,
the guidelines for resale or recapture as required in
Sec. 92.254(a)(5);
(5) If the insular area intends to use HOME funds for tenant-based
rental assistance, a description of how the program will be
administered consistent with the minimum guidelines described in
Sec. 92.209;
(6) If an insular area intends to use other forms of investment not
described in Sec. 92.205(b), a description of the other forms of
investment;
(7) A statement of the policy and procedures to be followed by the
insular area to meet the requirements for affirmative marketing, and
establishing and overseeing a minority and women business outreach
program under Sec. 92.351;
(8) If the insular intends to use HOME funds for refinancing along
with rehabilitation, the insular area's guidelines described in
Sec. 92.206(b).
(c) Certifications. The following certifications must accompany the
program description:
(1) A certification that, before committing funds to a project, the
insular area will evaluate the project in accordance with guidelines
that it adopts for this purpose and will not invest any more HOME funds
in combination with other governmental assistance than is necessary to
provide affordable housing;
(2) If the insular area intends to provide tenant-based rental
assistance, the certification required by Sec. 92.209;
(3) A certification that the submission of the program description
is authorized under applicable law and the insular area possesses the
legal authority to carry out the HOME Investment Partnerships Program,
in accordance with the HOME regulations;
(4) A certification that it will comply with the acquisition and
relocation requirements of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, as amended, implementing
regulations at 49 CFR part 24 and the requirements of Sec. 92.353;
(5) A certification that the insular area will use HOME funds in
compliance with all requirements of this part;
(6) The certification with regard to the drug-free workplace
required by 24 CFR part 24, subpart F; and
(7) The certification required with regard to lobbying required by
24 CFR part 87, together with disclosure forms, if required by 24 CFR
part 87.
Sec. 92.62 Review of program description and certifications.
(a) Review of program description. The responsible HUD Field Office
will review an insular area's program description and will approve the
description unless the insular area has failed to submit information
sufficient to allow HUD to make the necessary determinations required
for Sec. 92.61
[[Page 48756]]
(b)(4), (b)(6), and (b)(7), or the guidelines under (b)(8) are not
satisfactory to HUD, if applicable; or if the level of proposed
projects or eligible activities is not within the management capability
demonstrated by past performance in housing and community development
programs. If the insular area has not submitted information on
Sec. 92.61 (b)(4), (b)(6), and (b)(7), or the guidelines under (b)(8)
are not satisfactory to HUD, if applicable; or if the level of proposed
projects or eligible activities is not within the management capability
demonstrated by past performance in housing and community development
programs, the insular area may be required to furnish such further
information or assurances as HUD may consider necessary to find the
program description and certifications satisfactory. The HUD Field
Office shall work with the insular area to achieve a complete and
satisfactory program description.
(b) Review period. Within thirty days of receipt of the program
description, the HUD Field Office will notify the insular area if
determinations cannot be made under Sec. 92.61 (b)(4), (b)(6), (b)(7),
or (b)(8) with the supporting information submitted, or if the proposed
projects or activities are beyond currently demonstrated capability.
The insular area will have a reasonable period of time, agreed upon
mutually, to submit the necessary supporting information or to revise
the proposed projects or activities in its program description.
(c) HOME Investment Partnership Agreement. After HUD Field Office
approval under this section, a HOME funds allocation is made by HUD
execution of the agreement, subject to execution by the insular area.
The funds are obligated on the date HUD notifies the insular area of
HUD's execution of the agreement.
Sec. 92.63 Amendments to program description.
An insular area must submit to HUD for approval any substantial
change in its HUD-approved program description that it makes and must
document any other changes in its file. A substantial change involves a
change in the guidelines for resale or recapture (Sec. 92.61(b)(4)),
other forms of investment (Sec. 92.61(b)(6)), minority and women
business outreach program (Sec. 92.61(b)(7)) or refinancing
(Sec. 92.61(b)(8)); or a change in the tenure type of the project or
activities; or a funding increase to a project or activity of $100,000
or 50% (whichever is greater). The HUD Field Office will notify the
insular area if its program description, as amended, does not permit
determinations to be made under Sec. 92.61 (b)(4), (b)(6), (b)(7), or
(b)(8), or if the level of proposed projects or eligible activities is
not within the management capability demonstrated by past performance
in housing and community development programs, within 30 days of
receipt. The insular area will have a reasonable period of time, agreed
upon mutually, to submit the necessary supporting information to revise
the proposed projects or activities in its program description.
Sec. 92.64 Applicability of requirements to insular areas.
(a) Insular areas are subject to the same requirements in subpart E
(Program Requirements), subpart F (Project Requirements), subpart K
(Program Administration), and subpart L (Performance Reviews and
Sanctions) of this part as participating jurisdictions, except for the
following:
(1) Subpart E (Program Requirements): Administrative costs, as
described in Sec. 92.207, are eligible costs for insular areas in an
amount not to exceed 15 percent of the HOME funds provided to the
insular area. The matching contribution requirements in this part do
not apply.
(2) Subpart K (Program Administration):
(i) Section 92.500 (The HOME Investment Trust Fund) does not apply.
HUD will establish a HOME account in the United States Treasury for
each insular area and the HOME funds must be used for approved
activities. A local account must be established for program income.
Each insular area may use either a separate local HOME account or a
subsidiary account within its general fund (or other appropriate fund)
as the local HOME account. HUD will recapture HOME funds in the HOME
Treasury account by the amount of:
(A) Any funds that are not committed within 24 months after the
last day of the month in which HUD notifies the insular area of HUD's
execution of the HOME Investment Partnership Agreement;
(B) Any funds that are not expended within five years after the
last day of the month in which HUD notifies the insular area of HUD's
execution of the HOME Investment Partnership Agreement; and
(C) Any penalties assessed by HUD under Sec. 92.552.
(ii) Section 92.502 (Program disbursement and information system)
applies, except that references to the HOME Investment Trust Fund mean
HOME account. In addition, Sec. 92.502(c) does not apply, and instead
compliance with Treasury Circular No. 1075 (31 CFR part 205) and 24 CFR
85.21 is required.
(iii) Section 92.503 (Program income, repayments, and recaptured
funds) applies, except that the funds may be retained provided the
funds are used for eligible activities in accordance with the
requirements of this section.
(3) Section 92.504 (Participating jurisdiction responsibilities;
written agreements; on-site inspections) applies, except that the
written agreement must ensure compliance with the requirements in this
section.
(4) Section 92.508 (Recordkeeping) applies with respect to the
records that relate to the requirements of this section.
(5) Section 92.509 (Performance reports) applies, except that a
performance report is required for the fiscal year allocation only
after completion of the approved projects funded by the allocation.
(6) Subpart L (Performance Reviews and Sanctions): Section 92.552
does not apply. Instead, Sec. 92.65 applies.
(b) The requirements of subpart H (Other Federal Requirements) of
this part apply as follows: Sec. 92.357 Executive Order 12372 applies
as written, and the requirements of the remaining sections which apply
to participating jurisdictions are applicable to the insular areas.
(c) Subpart B (Allocation Formula), subpart C (Consortia;
Designation and Revocation as a Participating Jurisdiction), subpart D
(Submission Requirements), and subpart G (Community Housing Development
Organizations) of this part do not apply.
(d) Subpart A (General) applies, except that for the definitions of
``commitment'', ``program income'', and ``subrecipient'',
``participating jurisdiction'' means ``insular area.''
Sec. 92.65 Funding sanctions.
Following notice and opportunity for informal consultation, HUD may
withhold, reduce or terminate the assistance where any corrective or
remedial actions taken under Sec. 92.551 fail to remedy an insular
area's performance deficiencies, and the deficiencies are sufficiently
substantial, in the judgment of HUD, to warrant sanctions.
Sec. 92.66 Reallocation.
Any HOME funds which are reduced or recaptured from an insular
area's allocation and which are not used to increase the allocation
amount for one or more of the remaining insular areas as provided in
Sec. 92.60 of this part, will be reallocated by HUD to the States in
[[Page 48757]]
accordance with the requirements in subpart J for reallocating funds
initially allocated to a State.
Subpart C--Consortia; Designation and Revocation of Designation as
a Participating Jurisdiction
Sec. 92.100 [Reserved]
Sec. 92.101 Consortia.
(a) A consortium of geographically contiguous units of general
local government is a unit of general local government for purposes of
this part if the requirements of this section are met.
(1) One or more members of a proposed consortium or an existing
consortium whose consortium qualification terminates at the end of the
fiscal year, must provide written notification by March 1 to the HUD
Field Office of its intent to participate as a consortium in the HOME
Program for the following fiscal year. Provided that subsequent
deadlines could be met, the Field Office may accept notification at a
later date.
(2) The proposed consortium must provide, at such time and in a
manner and form prescribed by HUD, the qualification documents, which
will include submission of:
(i) A written certification by the State that the consortium will
direct its activities to alleviation of housing problems within the
State; and
(ii) Documentation which demonstrates that the consortium has
executed one legally binding cooperation agreement among its members
authorizing one member unit of general local government to act in a
representative capacity for all member units of general local
government for the purposes of this part and providing that the
representative member assumes overall responsibility for ensuring that
the consortium's HOME Program is carried out in compliance with the
requirements of this part.
(3) Before the end of the fiscal year in which the notice of intent
and documentation are submitted, HUD must determine that the consortium
has sufficient authority and administrative capability to carry out the
purposes of this part on behalf of its member jurisdictions. HUD will
endeavor to make its determination as quickly as practicable after
receiving the consortium's documentation in order to provide the
consortium an opportunity to correct its submission, if necessary. If
the submission is deficient, HUD will work with the consortium to
resolve the issue, but will not delay the formula allocations.
(b) A metropolitan city or an urban county may be a member of a
consortium. A unit of general local government that is included in an
urban county may be part of a consortium, only if the urban county
joins the consortium. The included local government cannot join the
consortium except through participation in the urban county.
(c) A non-urban county may be a member of a consortium. However,
the county cannot on its own include the whole county in the
consortium. A unit of local government located within the non-urban
county that wishes to participate as a member of the consortium must
sign the HOME consortium agreement.
(d) If the representative unit of general local government
distributes HOME funds to member units of general local government, the
representative unit is responsible for applying to the member units of
general local government the same requirements as are applicable to
subrecipients.
(e) The consortium's qualification as a unit of general local
government continues for a period of three successive Federal fiscal
years, or until HUD revokes its designation as a participating
jurisdiction, or until an urban county member fails to requalify under
the CDBG program as an urban county for a fiscal year included in the
consortium's qualification period, or the consortium fails to receive a
HOME allocation for the first Federal fiscal year of the consortium's
qualification period and does not request to be considered to receive a
HOME allocation in each of the subsequent two years. However, if a
member urban county's three year CDBG qualification cycle is not the
same as the consortium, the consortium may elect a shorter
qualification period than three years to synchronize with the urban
county's qualification period. During the period of qualification,
additional units of general local government may join the consortium,
but no included unit of general local government may withdraw from the
consortium. See 24 CFR part 91, subpart E, for consolidated plan
requirements for consortia, including the requirement that all members
of the consortia must be on the same program year.
Sec. 92.102 Participation threshold amount.
(a) To be eligible to become a participating jurisdiction, a unit
of general local government must have a formula allocation under
Sec. 92.50 that is equal to or greater than $750,000; or
(b) If a unit of general local government's formula allocation is
less than $750,000, HUD must find:
(1) The unit of general local government has a local PHA and has
demonstrated a capacity to carry out the provisions of this part, as
evidenced by satisfactory performance under one or more HUD-
administered programs that provide assistance for activities comparable
to the eligible activities under this part; and
(2) The State has authorized HUD to transfer to the unit of general
local government a portion of the State's allocation or the State, the
unit of general local government, or both, has made available its own
resources such that the sum of the amounts transferred or made
available are equal to or greater than the difference between the unit
of general local government's formula allocation and $750,000.
(c) In fiscal years in which Congress appropriates less than $1.5
billion for this part, $500,000 is substituted for $750,000 each time
it appears in this section.
Sec. 92.103 Notification of intent to participate.
(a) Not later than 30 days after receiving notice of its formula
allocation amount, a jurisdiction must notify HUD in writing of its
intention to become a participating jurisdiction.
(b) A unit of general local government that has a formula
allocation of less than $750,000, or less than $500,000 in fiscal years
in which Congress appropriates less than $1.5 billion for this part,
must submit, with its notice, one or more of the following, as
appropriate, as evidence that it has met the threshold allocation
requirements in Sec. 92.102(b):
(1) Authorization from the State to transfer a portion of its
allocation to the unit of general local government;
(2) A letter from the governor or designee indicating that the
required funds have been approved and budgeted for the unit of general
local government;
(3) A letter from the chief executive officer of the unit of
general local government indicating that the required funds have been
approved and budgeted.
Sec. 92.104 Submission of a consolidated plan.
A jurisdiction that has not submitted a consolidated plan to HUD
must submit to HUD, not later than 90 days after providing notification
under Sec. 92.103, a consolidated plan in accordance with 24 CFR part
91.
Sec. 92.105 Designation as a participating jurisdiction.
When a jurisdiction has complied with the requirements of
Secs. 92.102 through 92.104 and HUD has approved the jurisdiction's
consolidated plan in accordance with 24 CFR part 91, HUD
[[Page 48758]]
will designate the jurisdiction as a participating jurisdiction.
Sec. 92.106 Continuous designation as a participating jurisdiction.
Once a State or unit of general local government is designated a
participating jurisdiction, it remains a participating jurisdiction for
subsequent fiscal years and the requirements of Secs. 92.102 through
92.105 do not apply, unless HUD revokes the designation in accordance
with Sec. 92.107.
Sec. 92.107 Revocation of designation as a participating jurisdiction.
HUD may revoke a jurisdiction's designation as a participating
jurisdiction if:
(a) HUD finds, after reasonable notice and opportunity for hearing
as provided in Sec. 92.552(b) that the jurisdiction is unwilling or
unable to carry out the provisions of this part, including failure to
meet matching contribution requirements; or
(b) The jurisdiction's formula allocation falls below $750,000 (or
below $500,000 in fiscal years in which Congress appropriates less than
$1.5 billion for this part) for three consecutive years, below $625,000
(or below $410,000 in fiscal years in which Congress appropriates less
than $1.5 billion for this part) for two consecutive years, or the
jurisdiction does not receive a formula allocation in any one year.
(c) When HUD revokes a participating jurisdiction's designation as
a participating jurisdiction, HUD will reallocate any remaining funds
in the jurisdiction's HOME Investment Trust Fund established under
Sec. 92.500 in accordance with Sec. 92.451.
Subpart D--Submission Requirements
Sec. 92.150 Submission requirements.
In order to receive its HOME allocation, a participating
jurisdiction must submit a consolidated plan in accordance with 24 CFR
part 91. That part includes requirements for the content of the
consolidated plan, the process of developing the consolidated plan,
including citizen participation, the submission date, HUD approval, and
amendments.
Subpart E--Program Requirements
Sec. 92.200 Private-public partnership.
Each participating jurisdiction must make all reasonable efforts to
maximize participation by the private sector in accordance with section
221 of the Act.
Sec. 92.201 Distribution of assistance.
(a) Local. (1) Each local participating jurisdiction must, insofar
as is feasible, distribute HOME funds geographically within its
boundaries and among different categories of housing need, according to
the priorities of housing need identified in its approved consolidated
plan.
(2) The participating jurisdiction may only invest its HOME funds
in eligible projects within its boundaries, or in joint projects within
the boundaries of contiguous local jurisdictions which serve residents
from both jurisdictions.
(b) State. (1) Each State participating jurisdiction is responsible
for distributing HOME funds throughout the State according to the
State's assessment of the geographical distribution of the housing
needs within the State, as identified in the State's approved
consolidated plan. The State must distribute HOME funds to rural areas
in amounts that take into account the non-metropolitan share of the
State's total population and objective measures of rural housing need,
such as poverty and substandard housing, as set forth in the State's
approved consolidated plan. To the extent the need is within the
boundaries of a participating unit of general local government, the
State and the unit of general local government shall coordinate
activities to address that need.
(2) A State may carry out its own HOME program without active
participation of units of general local government or may distribute
HOME funds to units of general local government to carry out HOME
programs in which both the State and all or some of the units of
general local government perform specified program functions. A unit of
general local government designated by a State to receive HOME funds
from a State is a State recipient.
(3) (i) A State that uses State recipients to perform program
functions shall ensure that the State recipients use HOME funds in
accordance with the requirements of this part and other applicable
laws. The State may require the State recipient to comply with
requirements established by the State or may permit the State recipient
to establish its own requirements to comply with this part.
(ii) The State shall conduct such reviews and audit of its State
recipients as may be necessary or appropriate to determine whether the
State recipient has committed and expended the HOME funds in the United
States Treasury account as required by Sec. 92.500, and has met the
requirements of this part, particularly eligible activities, income
targeting, affordability, and matching contribution requirements.
(4) A State and local participating jurisdiction may jointly fund a
project within the boundaries of the local participating jurisdiction.
The State may provide the HOME funds to the project or it may provide
the HOME funds to the local participating jurisdiction to fund the
project.
(5) A State may fund projects on Indian reservations located within
the State provided that the State includes Indian reservations in its
consolidated plan.
Sec. 92.202 Site and neighborhood standards.
(a) General. A participating jurisdiction must administer its HOME
program in a manner that provides housing that is suitable from the
standpoint of facilitating and furthering full compliance with the
applicable provisions of title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d--2000d-4), the Fair Housing Act (42 U.S.C. 3601 et seq.,
E.O. 11063 (3 CFR, 1959-1963 Comp., p. 652), and HUD regulations issued
pursuant thereto; and promotes greater choice of housing opportunities.
(b) New rental housing. In carrying out these requirements with
respect to new construction of rental housing, a participating
jurisdiction must follow 24 CFR 893.6(b).
Sec. 92.203 Income determinations.
(a) The HOME program has income targeting requirements for the HOME
program and for HOME projects. Therefore, the participating
jurisdiction must determine each family is income eligible by
determining the family's annual income.
(1) For families who are tenants in HOME-assisted housing and not
receiving HOME tenant-based rental assistance, the participating
jurisdiction must determine annual income by one of the following
methods:
(i) Examine the source documents evidencing annual income (e.g.,
wage statement, interest statement, unemployment compensation
statement) for the family.
(ii) Obtain from the family a written statement of the amount of
the family's annual income and family size, along with a certification
that the information is complete and accurate. The certification must
state that the family will provide source documents upon request.
(iii) Obtain a written statement from the administrator of a
government program under which the family receives benefits and which
examines each year the annual income of the family. The statement must
indicate the tenant's family size and state the amount of the family's
annual income;
[[Page 48759]]
or alternatively, the statement must indicate the current dollar limit
for very low- or low-income families for the family size of the tenant
and state that the tenant's annual income does not exceed this limit.
(2) For all other families, the participating jurisdiction must
determine annual income by examining the source documents evidencing
annual income (e.g., wage statement, interest statement, unemployment
compensation statement) for the family.
(b) When determining whether a family is income eligible, the
participating jurisdiction must use one of the following three
definitions of ``annual income'':
(1) ``Annual income'' as defined under the Section 8 Housing
Assistance Payments programs in 24 CFR part 813 (except when
determining the income of a homeowner for an owner-occupied
rehabilitation project, the value of the homeowner's principal
residence may be excluded from the calculation of Net Family Assets);
or
(2) Annual Income as reported under the Census long-form for the
most recent available decennial Census. This definition includes:
(i) Wages, salaries, tips, commissions, etc.;
(ii) Self-employment income from owned non-farm business, including
proprietorships and partnerships;
(iii) Farm self-employment income;
(iv) Interest, dividends, net rental income, or income from estates
or trusts;
(v) Social Security or railroad retirement;
(vi) Supplemental Security Income, Aid to Families with Dependent
Children, or other public assistance or public welfare programs;
(vii) Retirement, survivor, or disability pensions; and
(viii) Any other sources of income received regularly, including
Veterans' (VA) payments, unemployment compensation, and alimony; or
(3) Adjusted gross income as defined for purposes of reporting
under Internal Revenue Service (IRS) Form 1040 series for individual
Federal annual income tax purposes.
(c) When determining the adjusted income of a family, the
participating jurisdiction must use the definition of ``adjusted
income'' for the Section 8 Housing Assistance Payments programs in 24
CFR part 813, except that the participating jurisdiction may use any of
the three definitions of ``annual income'' permitted in paragraph (a)
of this section. The HOME rents for very low-income families are based
on adjusted income. See Sec. 92.252. In addition, the participating
jurisdiction may base the amount of tenant-based rental assistance on
the adjusted income of the family.
(d) (1) The participating jurisdiction must calculate the annual
income of the family by projecting the prevailing rate of income of the
family at the time the participating jurisdiction determines that the
family is income eligible. Annual income shall include income from all
family members. Income or asset enhancement derived from the HOME-
assisted project shall not be considered in calculating annual income.
(2) The participating jurisdiction is not required to re-examine
the family's income at the time the HOME assistance is provided, unless
more than six months has elapsed since the participating jurisdiction
determined that the family qualified as income eligible.
Sec. 92.204 Applicability of requirements to entities that receive a
reallocation of HOME funds, other than participating jurisdictions.
(a) Jurisdictions other than participating jurisdictions and
community housing development organizations receiving competitive
reallocations from HUD are subject to the same requirements in subpart
E (Program Requirements), subpart F (Project Requirements), subpart K
(Program Administration), and subpart L (Performance Reviews and
Sanctions) of this part as participating jurisdictions, except for the
following:
(1) Subpart E (Program Requirements): the matching contribution
requirements in Sec. 92.218 through Sec. 92.221 do not apply.
(2) Subpart K (Program Administration):
(i) Section 92.500 (The HOME Investment Trust Fund) does not apply.
HUD will establish a HOME account in the United States Treasury and the
HOME funds must be used for approved activities. A local account must
be established for program income. HUD will recapture HOME funds in the
HOME Treasury account by the amount of:
(A) Any funds that are not committed within 24 months after the
last day of the month in which HUD notifies the entity of HUD's
execution of the HOME Investment Partnership Agreement;
(B) Any funds that are not expended within five years after the
last day of the month in which HUD notifies the entity of HUD's
execution of the HOME Investment Partnership Agreement; and
(C) Any penalties assessed by HUD under Sec. 92.552.
(ii) Section 92.502 (Program disbursement and information system)
applies, except that references to the HOME Investment Trust Fund mean
HOME account and the reference to 24 CFR part 58 does not apply. In
addition, Sec. 92.502(c) does not apply, and instead, compliance with
Treasury Circular No. 1075 (31 CFR part 205) and 24 CFR 85.21 is
required.
(iii) Section 92.503 (Program income, repayments, and recaptured
funds) applies, except that program income may be retained provided the
funds are used for eligible activities in accordance with the
requirements of this section.
(3) Section 92.504 (Participating jurisdiction responsibilities;
written agreements; on-site inspections) applies, except that the
written agreement must ensure compliance with the requirements in this
section.
(4) Section 92.508 (Recordkeeping) applies with respect to the
records that relate to the requirements of this section.
(5) Section 92.509 (Performance reports) applies, except that a
performance report is required only after completion of the approved
projects.
(b) The requirements in subpart H (Other Federal Requirements) of
this part apply as written, except that jurisdictions and community
housing development organizations receiving reallocations from HUD must
comply with affirmative marketing requirements, labor requirements, and
lead-based paint requirements, applicable to participating
jurisdictions.
(c) Subpart B (Allocation Formula), subpart C (Consortia;
Designation and Revocation of Designation as a Participating
Jurisdiction), and subpart G (Community Housing Development
Organizations) of this part do not apply.
(d) Subpart A (General) applies, except that for the definitions of
commitment, program income, and subrecipient, ``participating
jurisdiction'' means jurisdiction or community housing development
organization receiving the competitive reallocation.
Eligible and Prohibited Activities
Sec. 92.205 Eligible activities: general.
(a) Eligible activities. (1) HOME funds may be used by a
participating jurisdiction to provide incentives to develop and support
affordable rental housing and homeownership affordability through the
acquisition (including assistance to homebuyers), new construction,
reconstruction, or rehabilitation of non-luxury housing with suitable
amenities, including real property acquisition, site improvements,
conversion, demolition, and other
[[Page 48760]]
expenses, including financing costs, relocation expenses of any
displaced persons, families, businesses, or organizations; to provide
tenant-based rental assistance, including security deposits; to provide
payment of reasonable administrative and planning costs; and to provide
for the payment of operating expenses of community housing development
organizations. The housing must be permanent or transitional housing.
The specific eligible costs for these activities are set forth in
Secs. 92.206 through 92.209.
(2) Acquisition of vacant land or demolition must be undertaken
only with respect to a particular housing project intended to provide
affordable housing.
(3) Conversion of an existing structure to affordable housing is
rehabilitation, unless the conversion entails adding one or more units
beyond the existing walls, in which case, the project is new
construction for purposes of this part.
(4) Manufactured housing. HOME funds may be used to purchase and/or
rehabilitate a manufactured housing unit, or purchase the land upon
which a manufactured housing unit is located. Except for existing,
owner-occupied manufactured housing that is rehabilitated with HOME
funds, the manufactured housing unit must, at the time of project
completion, be connected to permanent utility hook-ups and be located
on land that is owned by the manufactured housing unit owner or land
for which the manufactured housing owner has a lease for a period at
least equal to the applicable period of affordability.
(b) Forms of assistance. (1) A participating jurisdiction may
invest HOME funds as equity investments, interest-bearing loans or
advances, non-interest-bearing loans or advances, interest subsidies
consistent with the purposes of this part, deferred payment loans,
grants, or other forms of assistance that HUD determines to be
consistent with the purposes of this part. Each participating
jurisdiction has the right to establish the terms of assistance,
subject to the requirements of this part.
(2) A participating jurisdiction may invest HOME funds to guarantee
loans made by lenders and, if required, the participating jurisdiction
may establish a loan guarantee account with HOME funds. The HOME funds
may be used to guarantee the timely payment of principal and interest
or payment of the outstanding principal and interest upon foreclosure
of the loan. The amount of the loan guarantee account must be based on
a reasonable estimate of the default rate on the guaranteed loans, but
under no circumstances may the amount on deposit exceed 20 percent of
the total outstanding principal amount guaranteed; except that the
account may include a reasonable minimum balance. While loan funds
guaranteed with HOME funds are subject to all HOME requirements, funds
which are used to repay the guaranteed loans are not.
(c) Minimum amount of assistance. The minimum amount of HOME funds
that must be invested in a project involving rental housing or
homeownership is $1,000 times the number of HOME-assisted units in the
project.
(d) Multi-unit projects. HOME funds may be used to assist one or
more housing units in a multi-unit project. Only the actual HOME
eligible development costs (i.e. costs eligible under Sec. 92.206(a),
(b) or (c) of the assisted units may be charged to the HOME program. If
the assisted and non-assisted units are not comparable, the actual
costs may be determined based on a method of cost allocation. If the
assisted and non-assisted units are comparable in terms of size,
features and number of bedrooms, the actual cost of the HOME-assisted
units can be determined by pro-rating the total HOME eligible
development costs of the project so that the proportion of the total
development costs charged to the HOME program does not exceed the
proportion of the HOME-assisted units in the project.
(e) Terminated projects. A HOME assisted project that is terminated
before completion, either voluntarily or otherwise, constitutes an
ineligible activity and any HOME funds invested in the project must be
repaid to the participating jurisdiction's HOME Investment Trust Fund
in accordance with Sec. 92.503(b) (except for project-specific
assistance to community housing development organizations as provided
in Sec. 92.301(a)(3) and Sec. 92.301(b)(3)).
Sec. 92.206 Eligible project costs.
HOME funds may be used to pay the following eligible costs:
(a) Development hard costs. The actual cost of constructing or
rehabilitating housing. These costs include the following:
(1) For new construction, costs to meet the applicable new
construction standards of the participating jurisdiction and the Model
Energy Code referred to in Sec. 92.251;
(2) For rehabilitation, costs:
(i) To meet the property standards in Sec. 92.251;
(ii) To make essential improvements, including energy-related
repairs or improvements, improvements necessary to permit use by
persons with disabilities, and the abatement of lead-based paint
hazards, as required by Sec. 92.355, and to repair or replace major
housing systems in danger of failure; and
(3) For both new construction and rehabilitation, costs:
(i) To demolish existing structures;
(ii) To make utility connections including off-site connections
from the property line to the adjacent street; and
(iii) To make improvements to the project site that are in keeping
with improvements of surrounding, standard projects. Site improvements
may include on-site roads and sewer and water lines necessary to the
development of the project. The project site is the property, owned by
the project owner, upon which the project is located.
(4) For both new construction and rehabilitation of multifamily
rental housing, costs to construct or rehabilitate laundry and
community facilities which are located within the same building as the
housing and which are for the use of the project residents and their
guests.
(b) Refinancing costs. The cost to refinance existing debt secured
by housing that is being rehabilitated with HOME funds:
(1) For single-family (1- to 4-family) owner-occupied housing when
loaning HOME funds to rehabilitate the housing, if the refinancing is
necessary to reduce the overall housing costs to the borrower and make
the housing more affordable.
(2) For multifamily projects, when loaning HOME funds to
rehabilitate the units if refinancing is necessary to permit or
continue affordability under Sec. 92.252. The participating
jurisdiction must establish refinancing guidelines and state them in
its consolidated plan described in 24 CFR part 91. Regardless of the
amount of HOME funds invested, the minimum affordability period shall
be 15 years. The guidelines shall describe the conditions under which
the participating jurisdictions will refinance existing debt. At
minimum, the guidelines must:
(i) Demonstrate that rehabilitation is the primary eligible
activity and ensure that this requirement is met by establishing a
minimum level of rehabilitation per unit or a required ratio between
rehabilitation and refinancing;
(ii) Require a review of management practices to demonstrate that
disinvestment in the property has not occurred, that the long term
needs of the project can be met and that the
[[Page 48761]]
feasibility of serving the targeted population over an extended
affordability period can be demonstrated;
(iii) State whether the new investment is being made to maintain
current affordable units, create additional affordable units, or both;
(iv) Specify the required period of affordability, whether it is
the minimum 15 years or longer;
(v) Specify whether the investment of HOME funds may be
jurisdiction-wide or limited to a specific geographic area, such as a
neighborhood identified in a neighborhood revitalization strategy under
24 CFR 91.215(e)(2) or a Federally designated Empowerment Zone or
Enterprise Community; and
(vi) State that HOME funds cannot be used to refinance multifamily
loans made or insured by any Federal program, including CDBG.
(c) Acquisition costs. Costs of acquiring improved or unimproved
real property, including acquisition by homebuyers.
(d) Related soft costs. Other reasonable and necessary costs
incurred by the owner or participating jurisdiction and associated with
the financing, or development (or both) of new construction,
rehabilitation or acquisition of housing assisted with HOME funds.
These costs include, but are not limited to:
(1) Architectural, engineering or related professional services
required to prepare plans, drawings, specifications, or work write-ups.
(2) Costs to process and settle the financing for a project, such
as private lender origination fees, credit reports, fees for title
evidence, fees for recordation and filing of legal documents, building
permits, attorneys fees, private appraisal fees and fees for an
independent cost estimate, builders or developers fees.
(3) Costs of a project audit that the participating jurisdiction
may require with respect to the development of the project.
(4) Costs to provide information services such as affirmative
marketing and fair housing information to prospective homeowners and
tenants as required by Sec. 92.351.
(5) For new construction or rehabilitation, the cost of funding an
initial operating deficit reserve, which is a reserve to meet any
shortfall in project income during the period of project rent-up (not
to exceed 18 months) and which may only be used to pay project
operating expenses, scheduled payments to a replacement reserve, and
debt service. Any HOME funds placed in an operating deficit reserve
that remain unexpended after the period of project rent-up may be
retained for project reserves if permitted by the participating
jurisdiction.
(6) Staff and overhead costs directly related to carrying out the
project, such as work specifications preparation, loan processing
inspections, and other services related to assisting potential owners,
tenants, and homebuyers, e.g., housing counseling, may be charged to
project costs only if the project is funded and the individual becomes
the owner or tenant of the HOME-assisted project. For multi-unit
projects, such costs must be allocated among HOME-assisted units in a
reasonable manner and documented.
(7) For both new construction and rehabilitation, costs for the
payment of impact fees that are charged for all projects within a
jurisdiction.
(8) Costs of environmental review and release of funds in
accordance with 24 CFR Part 58 which are directly related to the
project.
(e) Community housing development organization costs. Eligible
costs of project-specific assistance are set forth in Sec. 92.301.
(f) Relocation costs. The cost of relocation payments and other
relocation assistance to persons displaced by the project are eligible
costs.
(1) Relocation payments include replacement housing payments,
payments for moving expenses, and payments for reasonable out-of-pocket
costs incurred in the temporary relocation of persons.
(2) Other relocation assistance means staff and overhead costs
directly related to providing advisory and other relocation services to
persons displaced by the project, including timely written notices to
occupants, referrals to comparable and suitable replacement property,
property inspections, counseling, and other assistance necessary to
minimize hardship.
(g) Costs relating to payment of loans. If the HOME funds are not
used to directly pay a cost specified in this section, but are used to
pay off a construction loan, bridge financing loan, or guaranteed loan,
the payment of principal and interest for such loan is an eligible cost
only if:
(1) The loan was used for eligible costs specified in this section,
and
(2) The HOME assistance is part of the original financing for the
project and the project meets the requirements of this part.
Sec. 92.207 Eligible administrative and planning costs.
A participating jurisdiction may expend, for payment of reasonable
administrative and planning costs of the HOME program, an amount of
HOME funds that is not more than ten percent of the fiscal year HOME
basic formula allocation plus any funds received in accordance with
Sec. 92.102(b) to meet or exceed participation threshold requirements
that fiscal year. A State that transfers any HOME funds in accordance
with Sec. 92.102(b) must exclude these funds in calculating the amount
it may expend for administrative and planning costs. A participating
jurisdiction may also use up to ten percent of the program income
deposited in its local HOME account during the program year, for
administrative and planning costs. Reasonable administrative and
planning costs include:
(a) General management, oversight and coordination. Reasonable
costs of overall program management, coordination, monitoring, and
evaluation. Such costs include, but are not limited to, necessary
expenditures for the following:
(1) Salaries, wages, and related costs of the participating
jurisdiction's staff. In charging costs to this category the
participating jurisdiction may either include the entire salary, wages,
and related costs allocable to the program of each person whose primary
responsibilities with regard to the program involves program
administration assignments, or the prorated share of the salary, wages,
and related costs of each person whose job includes any program
administration assignments. The participating jurisdiction may use only
one of these methods. Program administration includes the following
types of assignments:
(i) Developing systems and schedules for ensuring compliance with
program requirements;
(ii) Developing interagency agreements and agreements with entities
receiving HOME funds;
(iii) Monitoring HOME-assisted housing for progress and compliance
with program requirements;
(iv) Developing agreements and monitoring housing not assisted with
HOME funds that the participating jurisdiction designates as a matching
contribution in accordance with Sec. 92.219(b) for compliance with
applicable program requirements;
(v) Preparing reports and other documents related to the program
for submission to HUD;
[[Page 48762]]
(vi) Coordinating the resolution of audit and monitoring findings;
(vii) Evaluating program results against stated objectives; and
(viii) Managing or supervising persons whose primary
responsibilities with regard to the program include such assignments as
those described in paragraphs (a)(1)(i) through (vii) of this section;
(2) Travel costs incurred for official business in carrying out the
program;
(3) Administrative services performed under third party contracts
or agreements, including such services as general legal services,
accounting services, and audit services;
(4) Other costs for goods and services required for administration
of the program, including such goods and services as rental or purchase
of equipment, insurance, utilities, office supplies, and rental and
maintenance (but not purchase) of office space; and
(5) Costs of administering tenant-based rental assistance programs.
(b) Staff and overhead. Staff and overhead costs directly related
to carrying out the project, such as work specifications preparation,
loan processing, inspections, and other services related to assisting
potential owners, tenants, and homebuyers (e.g., housing counseling);
and staff and overhead costs directly related to providing advisory and
other relocation services to persons displaced by the project,
including timely written notices to occupants, referrals to comparable
and suitable replacement property, property inspections, counseling,
and other assistance necessary to minimize hardship. These costs may be
charged as administrative costs or as project costs under Sec. 92.206
(d)(6) and (f)(2), at the discretion of the participating jurisdiction.
(c) Public information. The provision of information and other
resources to residents and citizen organizations participating in the
planning, implementation, or assessment of projects being assisted with
HOME funds.
(d) Fair housing. Activities to affirmatively further fair housing
in accordance with the participating jurisdiction's certification under
24 CFR part 91.
(e) Indirect Costs. Indirect costs may be charged to the HOME
program under a cost allocation plan prepared in accordance with OMB
Circulars A-87 or A-122 as applicable.
(f) Preparation of the consolidated plan. Preparation of the
consolidated plan required under 24 CFR part 91. Preparation includes
the costs of public hearings, consultations, and publication.
(g) Other Federal requirements. Costs of complying with the Federal
requirements in subpart H of this part. Project-specific environmental
review costs may be charged as administrative costs or as project costs
in accordance with Sec. 92.206(d)(8), at the discretion of the
participating jurisdiction.
Sec. 92.208 Eligible community housing development organization (CHDO)
operating expense and capacity building costs.
(a) Up to 5 percent of a participating jurisdiction's fiscal year
HOME allocation may be used for the operating expenses of community
housing development organizations (CHDOs). These funds may not be used
to pay operating expenses incurred by a CHDO acting as a subrecipient
or contractor under the HOME Program. Operating expenses means
reasonable and necessary costs for the operation of the community
housing development organization. Such costs include salaries, wages,
and other employee compensation and benefits; employee education,
training, and travel; rent; utilities; communication costs; taxes;
insurance; equipment; materials and supplies. The requirements and
limitations on the receipt of these funds by CHDOs are set forth in
Sec. 92.300 (e) and (f).
(b) HOME funds may be used for capacity building costs under
Sec. 92.300(b).
Sec. 92.209 Tenant-based rental assistance: Eligible costs and
requirements.
(a) Eligible costs. Eligible costs are the rental assistance and
security deposit payments made to provide tenant-based rental
assistance for a family pursuant to this section. Administration of
tenant-based rental assistance is eligible only under general
management oversight and coordination at Sec. 92.207(a).
(b) General requirement. A participating jurisdiction may use HOME
funds for tenant-based rental assistance only if the participating
jurisdiction makes the certification about inclusion of this type of
assistance in its consolidated plan in accordance with 24 CFR
91.225(d)(1), 91.325(d)(1), or 91.425(a)(2)(i), and specifies local
market conditions that lead to the choice of this option.
(c) Tenant selection. The participating jurisdiction must select
families in accordance with written tenant selection policies and
criteria that are consistent with the following:
(1) Low-income families. Tenant-based rental assistance may only be
provided to very low- and low-income families. The participating
jurisdiction must determine that the family is very low- or low-income
before the assistance is provided. During the period of assistance, the
participating jurisdiction must annually determine that the family
continues to be low-income.
(2) Federal preferences. At least 50 percent of the families
assisted must qualify, or would qualify in the near future without
tenant-based rental assistance, for one of the three Federal
preferences under section 6(c)(4)(A) of the 1937 Act. These are
families that occupy substandard housing (including families that are
homeless or living in a shelter for homeless families); families that
are paying more than 50 percent of their annual income for rent; or
families that are involuntarily displaced. [For FY 1995 only, a Federal
preference is also given to families that include one or more adult
members who are employed. For FY 1996 only, the Federal preferences do
not apply.]
(3) Preferences for Individuals with Special Needs. (i) The
participating jurisdiction may establish a preference for individuals
with special needs. The participating jurisdiction may offer, in
conjunction with a tenant-based rental assistance program, particular
types of non-mandatory services that may be most appropriate for
persons with a special need or a particular disability. Generally,
tenant-based rental assistance and the related services should be made
available to all persons with special needs or disabilities who can
benefit from such services.
(ii) The participating jurisdiction may also provide a preference
for a specific category of individuals with disabilities (e.g., persons
with HIV/AIDS or chronic mental illness) if the specific category is
identified in the participating jurisdiction's consolidated plan as
having unmet need and the preference is needed to narrow the gap in
benefits and services received by such persons.
(iii) Preferences cannot be administered in a manner that limits
the opportunities of persons on any basis prohibited by the laws listed
under 24 CFR 5.105(a). For example, a participating jurisdiction may
not determine that persons given a preference under the program are
therefore prohibited from applying for or participating in other
programs or forms of assistance.
(iv) To the extent that a participating jurisdiction is operating a
tenant-based rental assistance program targeted exclusively to
individuals with special needs or disabilities or to a specific
category of individuals with special
[[Page 48763]]
needs or disabilities, at least 50% of the individuals must qualify or
would qualify in the near future for one of the three Federal
preferences as described in paragraph (c)(2) of this section.
(4) Existing tenants in the HOME-assisted projects. A participating
jurisdiction may select low-income families currently residing in
housing units that are designated for rehabilitation or acquisition
under the participating jurisdiction's HOME program without requiring
that the family meet the requirements of paragraph (c)(2) of this
section. Families so selected may use the tenant-based assistance in
the rehabilitated or acquired housing unit or in other qualified
housing.
(d) Portability of assistance. A participating jurisdiction may
require the family to use the tenant-based assistance within the
participating jurisdiction's boundaries or may permit the family to use
the assistance outside its boundaries.
(e) Term of rental assistance contract. The term of the rental
assistance contract providing assistance with HOME funds may not exceed
24 months, but may be renewed, subject to the availability of HOME
funds. The term of the rental assistance contract must begin on the
first day of the term of the lease. For a rental assistance contract
between a participating jurisdiction and an owner, the term of the
contract must terminate on termination of the lease. For a rental
assistance contract between a participating jurisdiction and a family,
the term of the contract need not end on termination of the lease, but
no payments may be made after termination of the lease until a family
enters into a new lease.
(f) Rent reasonableness. The participating jurisdiction must
disapprove a lease if the rent is not reasonable, based on rents that
are charged for comparable unassisted rental units.
(g) Tenant protections. The lease must comply with the requirements
in Sec. 92.253 (a) and (b).
(h) Maximum subsidy. (1) The amount of the monthly assistance that
a participating jurisdiction may pay to, or on behalf of, a family may
not exceed the difference between a rent standard for the unit size
established by the participating jurisdiction and 30 percent of the
family's monthly adjusted income.
(2) The participating jurisdiction must establish a minimum tenant
contribution to rent.
(3) The participating jurisdiction's rent standard for a unit size
must be based on:
(i) Local market conditions; or
(ii) For each unit size, may not be less than 80 percent of the
published Section 8 Existing Housing fair market rent (in effect when
the payment standard amount is adopted) nor more than the fair market
rent or HUD-approved community-wide exception rent (in effect when the
participating jurisdiction adopts its rent standard amount).
(Community-wide exception rents are maximum gross rents approved by HUD
for the Rental Certificate Program under 24 CFR 882.106(a)(3) for a
designated municipality, county, or similar locality, which apply to
the whole PHA jurisdiction.) A participating jurisdiction may approve
on a unit-by-unit basis a subsidy based on a rent standard that exceeds
the applicable fair market rent by up to 10 percent for 20 percent of
units assisted.
(i) Housing quality standards. Housing occupied by a family
receiving tenant-based assistance under this section must meet the
requirements set forth in 24 CFR 982.401. The participating
jurisdiction must inspect the housing initially and re-inspect it
annually.
(j) Security deposits. (1) A participating jurisdiction may use
HOME funds provided for tenant-based rental assistance to provide loans
or grants to very low- and low-income families for security deposits
for rental of dwelling units whether or not the participating
jurisdiction provides any other tenant-based rental assistance under
this section.
(2) The relevant State or local definition of ``security deposit''
in the jurisdiction where the unit is located is applicable for the
purposes of this part, except that the amount of HOME funds that may be
provided for a security deposit may not exceed the equivalent of two
month's rent for the unit.
(3) Only the prospective tenant may apply for HOME security deposit
assistance, although the participating jurisdiction may pay the funds
directly to the tenant or to the landlord.
(4) HOME funds for security deposits may be provided as a grant or
as a loan. If they are provided as a loan, the loan repayments are
program income to be used in accordance with Sec. 92.503.
(5) Paragraphs (b), (c), (d), (f), (g), and (i) of this section are
applicable to HOME security deposit assistance.
(k) Program operation. A tenant-based rental assistance program
must be operated consistent with the requirements of this section. The
participating jurisdiction may operate the program itself, or may
contract with a PHA or other entity with the capacity to operate a
rental assistance program. The tenant-based rental assistance may be
provided through an assistance contract to an owner that leases a unit
to an assisted family or directly to the family. In either case, the
participating jurisdiction (or entity operating the program) must
approve the lease.
(l) Use of Section 8 assistance. In any case where assistance under
section 8 of the 1937 Act becomes available to a participating
jurisdiction, recipients of tenant-based rental assistance under this
part will qualify for tenant selection preferences to the same extent
as when they received the tenant-based rental assistance under this
part.
Sec. 92.212 Pre-award costs.
(a) General. Before the effective date of the HOME Investment
Partnership Agreement, the participating jurisdiction may incur costs
which may be charged to the HOME allocation after the award of the HOME
allocation, provided the costs are in compliance with the requirements
of this part (including environmental review requirements) and with the
statutory and regulatory requirements in effect at the time the costs
are charged to the HOME allocation.
(b) Administrative and planning costs. Eligible administrative and
planning costs may be incurred as of the beginning of the participating
jurisdiction's consolidated program year (see 24 CFR 91.10) or the date
the consolidated plan describing the HOME allocation to which the costs
will be charged is received by HUD, whichever is later.
(c) Project costs. Eligible project costs may be incurred during
the current program year in an amount not to exceed 25% of the current
HOME allocation amount, to be charged to the following year's HOME
allocation. Before incurring the pre-award costs, the participating
jurisdiction must comply with its citizen participation plan
requirements addressing 24 CFR 91.105(b)(2), (4), (5) and (g) (local
governments) or 24 CFR 91.115(b)(2), (4), (5) and (f) (States). In lieu
of a full action plan, the participating jurisdiction may develop a
mini-action plan which describes the proposed pre-award projects and
costs in accordance with 24 CFR 91.220(c) and includes, if applicable,
24 CFR 91.220(g)(2) (local governments) or 24 CFR 91.320(c) and, if
applicable, 24 CFR 91.320(g)(2) (States). The mini-action plan must
state that HOME funding for the project(s) is subject to the future
availability of HOME funds. The subsequent action
[[Page 48764]]
plan (i.e., action plan for the HOME allocation to which the costs will
be charged) must also include the use of HOME funds contained in the
mini-action plan.
(d) Subrecipient or State recipient costs. The participating
jurisdiction may authorize its subrecipient or State recipient to incur
pre-award costs in accordance with the requirements of this section.
The authorization must be in writing.
(e) Other pre-agreement costs. Pre-agreement costs in excess of the
amount set forth in paragraph (c) of this section must be approved, in
writing, by the HUD Field Office before the costs are incurred.
Sec. 92.213 [Reserved]
Sec. 92.214 Prohibited activities.
(a) HOME funds may not be used to:
(1) Provide project reserve accounts, except as provided in
Sec. 92.206(d)(5), or operating subsidies;
(2) Provide tenant-based rental assistance for the special purposes
of the existing section 8 program, in accordance with section 212(d) of
the Act;
(3) Provide non-federal matching contributions required under any
other Federal program;
(4) Provide assistance authorized under section 9 of the 1937 Act
(annual contributions for operation of public housing);
(5) Carry out activities authorized under 24 CFR part 968 (Public
Housing Modernization);
(6) Provide assistance to eligible low-income housing under 24 CFR
part 248 (Prepayment of Low Income Housing Mortgages);
(7) Provide assistance (other than tenant-based rental assistance
or assistance to a homebuyer to acquire housing previously assisted
with HOME funds) to a project previously assisted with HOME funds
during the period of affordability established by the participating
jurisdiction in the written agreement under Sec. 92.504. However,
additional HOME funds may be committed to a project up to one year
after project completion (see Sec. 92.502), but the amount of HOME
funds in the project may not exceed the maximum per-unit subsidy amount
established under Sec. 92.250.
(8) Pay for the acquisition of property owned by the participating
jurisdiction, except for property acquired by the participating
jurisdiction with HOME funds, or property acquired in anticipation of
carrying out a HOME project; or
(9) Pay for any cost that is not eligible under Secs. 92.206
through 92.209.
(b) Participating jurisdictions may not charge monitoring,
servicing and origination fees in HOME-assisted projects. However,
participating jurisdictions may charge nominal application fees
(although these fees are not an eligible HOME cost) to project owners
to discourage frivolous applications. Such fees are applicable credits
under OMB Circular A-87.
Sec. 92.215 Limitation on jurisdictions under court order.
Limitations on the use of HOME funds in connection with litigation
involving discrimination or fair housing are set forth in section 224
of the Act.
Income Targeting
Sec. 92.216 Income targeting: Tenant-based rental assistance and
rental units.
Each participating jurisdiction must invest HOME funds made
available during a fiscal year so that, with respect to tenant-based
rental assistance and rental units:
(a) Not less than 90 percent of:
(1) The families receiving such rental assistance are families
whose annual incomes do not exceed 60 percent of the median family
income for the area, as determined and made available by HUD with
adjustments for smaller and larger families (except that HUD may
establish income ceilings higher or lower than 60 percent of the median
for the area on the basis of HUD's findings that such variations are
necessary because of prevailing levels of construction cost or fair
market rent, or unusually high or low family income) at the time of
occupancy or at the time funds are invested, whichever is later; or
(2) The dwelling units assisted with such funds are occupied by
families having such incomes; and
(b) The remainder of:
(1) The families receiving such rental assistance are households
that qualify as low-income families (other than families described in
paragraph (a)(1) of this section) at the time of occupancy or at the
time funds are invested, whichever is later; or
(2) The dwelling units assisted with such funds are occupied by
such households.
Sec. 92.217 Income targeting: Homeownership.
Each participating jurisdiction must invest HOME funds made
available during a fiscal year so that with respect to homeownership
assistance, 100 percent of these funds are invested in dwelling units
that are occupied by households that qualify as low-income families at
the time of occupancy or at the time funds are invested, whichever is
later.
Matching Contribution Requirement
Sec. 92.218 Amount of matching contribution.
(a) General. Each participating jurisdiction must make
contributions to housing that qualifies as affordable housing under the
HOME program, throughout a fiscal year. The contributions must total
not less than 25 percent of the funds drawn from the jurisdiction's
HOME Investment Trust Fund Treasury account in that fiscal year,
excluding funds drawn for purposes identified in paragraph (c) of this
section.
(b) Shortfall amount from State or local resources. Amounts made
available under Sec. 92.102(b)(2) from the resources of a State (other
than a transfer of the State's formula allocation), the local
participating jurisdiction, or both, to enable the local participating
jurisdiction to meet the participation threshold amount are not
required to be matched and do not constitute matching contributions.
(c) HOME funds not required to be matched. HOME funds used for
administrative and planning costs (pursuant to Sec. 92.207); community
housing development organization operating expenses (pursuant to
Sec. 92.208); capacity building (pursuant to Sec. 92.300(b)) of
community housing development organizations; and project specific
assistance to community housing development organizations (pursuant to
Sec. 92.301) when the participating jurisdiction waives repayment under
the provisions of Sec. 92.301(a)(3) or Sec. 92.301(b)(3) are not
required to be matched.
(d) Match contribution for other programs. Contributions that have
been or will be counted as satisfying a matching requirement of another
Federal grant or award may not count as satisfying the matching
contribution requirement for the HOME program.
Sec. 92.219 Recognition of matching contribution.
(a) Match contribution to HOME-assisted housing. A contribution is
recognized as a matching contribution if it is made with respect to:
(1) A tenant who is assisted with HOME funds;
(2) A HOME-assisted unit;
(3) The portion of a project that is not HOME-assisted provided
that at least 50 percent of the housing units in the project are HOME-
assisted. If the match contribution to the portion of the project that
is not HOME-assisted meets the affordable housing requirements of
Sec. 92.219(b)(2), the percentage
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requirement for HOME-assisted units does not apply; or
(4) The commercial space in a mixed-use project in which at least
51 percent of the floor space is residential provided that at least 50
percent of the dwelling units are HOME-assisted.
(b) Match contribution to affordable housing that is not HOME-
assisted. The following requirements apply for recognition of matching
contributions made to affordable housing that is not HOME-assisted:
(1) For tenant-based rental assistance that is not HOME-assisted:
(i) The contribution must be made with respect to a tenant who is
assisted with tenant-based rental assistance that meets the
requirements of Secs. 92.203 (Income determinations) and 92.209
(Tenant-based rental assistance, except for Sec. 92.209(e) Term of
rental assistance contract); and
(ii) The participating jurisdiction must demonstrate in writing
that such assistance meets the provisions of Secs. 92.203 and 92.209
(except Sec. 92.209(e)).
(2) For affordable housing that is not HOME-assisted:
(i) The contribution must be made with respect to housing that
qualifies as affordable housing under Sec. 92.252 or Sec. 92.254.
(ii) The participating jurisdiction or its instrumentality must
execute, with the owner of the housing (or, if the participating
jurisdiction is the owner, with the manager or developer), a written
agreement that imposes and enumerates all of the affordability
requirements from Sec. 92.252 and Sec. 92.253(a) and (b) (Tenant
protections), or Sec. 92.254, whichever are applicable; the property
standards requirements of Sec. 92.251; and income determinations made
in accordance with Sec. 92.203. This written agreement must be executed
before any match contributions may be made.
(iii) A participating jurisdiction must establish a procedure to
monitor HOME match-eligible housing to ensure continued compliance with
the requirements of Secs. 92.203 (Income determinations), 92.252
(Qualification as affordable housing: Rental housing), 92.253(a) and
(b) (Tenant protections) and 92.254 (Qualification as affordable
housing: Homeownership). No other HOME requirements apply.
(iv) The match contribution may be in any eligible form of match
except those in Sec. 92.220(a)(2) (forbearance of fees) and (4) (on-
site and off-site infrastructure).
(v) Match contributions to mixed-use or mixed-income projects that
contain affordable housing units will be recognized only if the
contribution is made to the project's affordable housing units.
Sec. 92.220 Form of matching contribution.
(a) Eligible forms. Matching contributions must be made from
nonfederal resources and may be in the form of one or more of the
following:
(1) Cash contributions from nonfederal sources. To be recognized as
a cash contribution, funds must be contributed permanently to the HOME
program (or to affordable housing not assisted with HOME funds),
regardless of the form of investment provided to the project.
Therefore, to receive match credit for the full amount of a loan to a
HOME project, all repayment, interest, or other return on investment of
the contribution must be deposited in the local account of the
participating jurisdiction's HOME Investment Trust Fund to be used for
eligible HOME activities in accordance with the requirements of this
part. A cash contribution to affordable housing that is not assisted
with HOME funds must be contributed permanently to the project.
Repayments of matching contributions in affordable housing projects, as
defined in Sec. 92.219(b), that are not HOME-assisted, must be made to
the local account of the participating jurisdiction's HOME Investment
Trust Fund to get match credit for the full loan amount.
(i) A cash contribution may be made by the participating
jurisdiction, non-Federal public entities, private entities, or
individuals, except as prohibited under paragraph (b)(4) of this
section. A cash contribution made to a nonprofit organization for use
in a HOME project may be counted as a matching contribution.
(ii) A cash contribution may be made from program income (as
defined by 24 CFR Sec. 85.25(b)) from a Federal grant earned after the
end of the award period if no Federal requirements govern the
disposition of the program income. Included in this category are
repayments from closed out grants under the Urban Development Action
Grant Program (24 CFR part 570, subpart G) and the Housing Development
Grant Program (24 CFR part 850), and from the Rental Rehabilitation
Grant Program (24 CFR part 511) after all fiscal year Rental
Rehabilitation grants have been closed out.
(iii) The grant equivalent of a below-market interest rate loan to
the project that is not repayable to the participating jurisdiction's
HOME Investment Trust Fund may be counted as a cash contribution, as
follows:
(A) If the loan is made from funds borrowed by a jurisdiction or
public agency or corporation the contribution is the present discounted
cash value of the difference between the payments to be made on the
borrowed funds and payments to be received from the loan to the project
based on a discount rate equal to the interest rate on the borrowed
funds.
(B) If the loan is made from funds other than funds borrowed by a
jurisdiction or public agency or corporation, the contribution is the
present discounted cash value of the yield foregone. In determining the
yield foregone, the participating jurisdiction must use as a measure of
a market rate yield one of the following, as appropriate:
(1) With respect to one- to four-unit housing financed with a fixed
interest rate mortgage, a rate equal to the 10-year Treasury note rate
plus 200 basis points;
(2) With respect to one- to four-unit housing financed with an
adjustable interest rate mortgage, a rate equal to the one-year
Treasury bill rate plus 250 basis points; or
(3) With respect to a multifamily project, a rate equal to the 10-
year Treasury note rate plus 300 basis points.
(iv) Proceeds of bonds that are not repaid with revenue from an
affordable housing project (e.g., general obligation bonds) and that
are loaned to a HOME-assisted or other qualified affordable housing
project constitute a cash contribution under this paragraph.
(v) A cash contribution may be counted as a matching contribution
only if it is used for costs eligible under Secs. 92.206 or 92.209, or
for the following (which are not HOME eligible costs): the cost of
removing and relocating an ECHO housing unit during the period of
affordability in accordance with Sec. 92.258(d)(3)(ii), payments to a
project reserve account beyond payments permitted by Sec. 92.206(d)(5),
operating subsidies, or costs relating to the portion of a mixed-income
or mixed-use HOME-assisted project not related to the affordable
housing units.
(2) Forbearance of fees. (i) State and local taxes, charges or
fees. The value (based on customary and reasonable means for
establishing value) of State or local taxes, fees, or other charges
that are normally and customarily imposed or charged by a State or
local government on all transactions or projects in the conduct of its
operations, which are waived, foregone, or deferred (including State
low-income housing tax credits) in a manner that achieves affordability
of HOME-assisted projects, may be counted as match. The amount of any
real estate taxes may be based on
[[Page 48766]]
post-improvement property value. For taxes, fees, or charges that are
forgiven for future years, the value is the present discounted cash
value, based on a rate equal to the rate for the Treasury security with
a maturity closest to the number of years for which the taxes, fees, or
charges are waived, foregone, or deferred.
(ii) Other charges or fees. The value of fees or charges associated
with the transfer or development of real estate that are normally and
customarily imposed or charged by public or private entities, which are
waived or foregone, in whole or in part, in a manner that achieves
affordability of HOME-assisted projects, may be counted as match. Fees
and charges under this paragraph do not include fees or charges for
legal or other professional services; professional services which are
donated, in whole or in part, are an eligible matching contribution in
accordance with paragraph (a)(7) of this section.
(iii) Fees or charges that are associated with the HOME Program
only (rather than normally and customarily imposed or charged on all
transactions or projects) are not eligible forms of matching
contributions.
(3) Donated Real Property. The value, before the HOME assistance is
provided and minus any debt burden, lien, or other encumbrance, of
donated land or other real property may be counted as match. The
donation may be made by the participating jurisdiction, non-Federal
public entities, private entities, or individuals, except as prohibited
under paragraph (b)(4) of this section.
(i) Donated property not acquired with Federal resources is a
contribution in the amount of 100% of the value.
(ii) Donated property acquired with Federal assistance may provide
a partial contribution as follows. The property must be acquired with
Federal assistance specifically for a HOME project (or for affordable
housing that will be counted as match pursuant to Sec. 92.219(b)(2)).
The property must be acquired with the Federal assistance at
demonstrably below the appraised value and must be acknowledged by the
seller as a donation to affordable housing at the time of the
acquisition with the Federal assistance. The amount of the contribution
is the difference between the acquisition price and the appraised value
at the time of acquisition with the Federal assistance. If the property
is acquired with the Federal assistance by someone other than the HOME
project (or affordable housing) owner, to continue to qualify as a
contribution, the property must be given to the HOME project (or
affordable housing) owner at a price that does not exceed the amount of
the Federal assistance used to acquire the property.
(iii) Property must be appraised in conformance with established
and generally recognized appraisal practice and procedures in common
use by professional appraisers. Opinions of value must be based on the
best available data properly analyzed and interpreted. The appraisal of
land and structures must be performed by an independent, certified
appraiser.
(4) The cost, not paid with Federal resources, of on-site and off-
site infrastructure that the participating jurisdiction documents are
directly required for HOME-assisted projects. The infrastructure must
have been completed no earlier than 12 months before HOME funds are
committed to the project.
(5) Proceeds from multifamily and single family affordable housing
project bond financing validly issued by a State or local government,
or an agency or instrumentality of a State or local government or a
political subdivision of a State and repayable with revenues from the
affordable housing project financed as follows:
(i) Fifty percent of the loan amount made from bond proceeds to a
multifamily affordable housing project owner may qualify as match.
(ii) Twenty-five percent of the loan amount from bond proceeds made
to a single-family affordable housing project owner may qualify as
match.
(iii) Loans made from bond proceeds may not constitute more than 25
percent of a participating jurisdiction's total annual match
contribution.
(6) The reasonable value of donated site-preparation and
construction materials, not acquired with Federal resources. The value
of site-preparation and construction materials is to be determined in
accordance with the participating jurisdiction's cost estimate
procedures.
(7) The reasonable rental value of the donated use of site
preparation or construction equipment.
(8) The value of donated or voluntary labor or professional
services (see Sec. 92.354(b)) in connection with the provision of
affordable housing. A single rate established by HUD shall be
applicable for determining the value of unskilled labor. The value of
skilled labor or professional services shall be determined by the rate
that the individual or entity performing the labor or service normally
charges.
(9) The value of sweat equity (see Sec. 92.354(c)) provided to a
homeownership project, under an established component of a
participating jurisdiction's program, up until the time of project
completion (i.e., submission of a project completion form). Such labor
shall be valued at the rate established for unskilled labor at
paragraph (a)(8) of this section.
(10) The direct cost of supportive services provided to families
residing in HOME-assisted units during the period of affordability. The
supportive services must be necessary to facilitate independent living
or be required as part of a self-sufficiency program. Examples of
supportive services include: case management, mental health services,
assistance with the tasks of daily living, substance abuse treatment
and counseling, day care, and job training and counseling.
(11) The direct cost of homebuyer counseling services provided to
families that acquire properties with HOME funds under the provisions
of Sec. 92.254(a), including ongoing counseling services provided
during the period of affordability. These services may be provided as
part of a homebuyer counseling program that is not specific to the HOME
Program, but only the cost of services to families that complete
purchases with HOME assistance may be counted as match.
(b) Ineligible forms. The following are examples that do not meet
the requirements of paragraph (a) of this section and do not count
toward meeting a participating jurisdiction's matching contribution
requirement:
(1) Contributions made with or derived from Federal resources or
funds, regardless of when the Federal resources or funds were received
or expended. CDBG funds (defined in 24 CFR 570.3) are Federal funds for
this purpose;
(2) The interest rate subsidy attributable to the Federal tax-
exemption on financing or the value attributable to Federal tax
credits;
(3) Owner equity or investment in a project; and
(4) Cash or other forms of contributions from applicants for or
recipients of HOME assistance or contracts, or investors who own, are
working on, or are proposing to apply for, assistance for a HOME-
assisted project, except as permitted under paragraph (a)(9) of this
section.
Sec. 92.221 Match credit.
(a) When credit is given. Contributions are credited on a fiscal
year basis at the time the contribution is made, as follows:
(1) A cash contribution is credited when the funds are expended.
(2) The grant equivalent of a below-market interest rate loan is
credited at the time of the loan closing.
[[Page 48767]]
(3) The value of state or local taxes, fees, or other charges that
are normally and customarily imposed but are waived, foregone, or
deferred is credited at the time the state or local government or other
public or private entity officially waives, forgoes, or defers the
taxes, fees, or other charges and notifies the project owner.
(4) The value of donated land or other real property is credited at
the time ownership of the property is transferred to the HOME project
(or affordable housing) owner.
(5) The cost of investment in infrastructure directly required for
HOME-assisted projects is credited at the time funds are expended for
the infrastructure or at the time the HOME funds are committed to the
project if the infrastructure was completed before the commitment of
HOME funds.
(6) The value of donated material is credited as match at the time
it is used for affordable housing.
(7) The value of the donate use of site preparation or construction
equipment is credited as match at the time the equipment is used for
affordable housing.
(8) The value of donated or voluntary labor or professional
services is credited at the time the work is performed.
(9) A loan made from bond proceeds under Sec. 92.220(a)(5) is
credited at the time of the loan closing.
(10) The direct cost of social services provided to residents of
HOME-assisted units is credited at the time that the social services
are provided during the period of affordability.
(11) The direct cost of homebuyer counseling services provided to
families that purchase HOME-assisted units is credited at the time that
the homebuyer purchases the unit or for post-purchase counseling
services, at the time the counseling services are provided.
(b) Excess match. Contributions made in a fiscal year that exceed
the participating jurisdiction's match liability for the fiscal year in
which they were made may be carried over and applied to future fiscal
years' match liability. Loans made from bond proceeds in excess of 25
percent of a participating jurisdiction's total annual match
contribution may be carried over to subsequent fiscal years as excess
match, subject to the annual 25 percent limitation.
(c) Credit for match contributions shall be assigned as follows:
(1) For HOME-assisted projects involving more than one
participating jurisdiction, the participating jurisdiction that makes
the match contribution may decide to retain the match credit or permit
the other participating jurisdiction to claim the credit.
(2) For HOME match contributions to affordable housing that is not
HOME-assisted (match pursuant to Sec. 92.219(b)) involving more than
one participating jurisdiction, the participating jurisdiction that
makes the match contribution receives the match credit.
(3) A State that provides non-Federal funds to a local
participating jurisdiction to be used for a contribution to affordable
housing, whether or not HOME-assisted, may take the match credit for
itself or may permit the local participating jurisdiction to receive
the match credit.
Sec. 92.222 Reduction of matching contribution requirement.
(a) Reduction for fiscal distress. HUD will determine match
reductions annually.
(1) Distress criteria for local government participating
jurisdictions. If a local government participating jurisdiction
satisfies both of the distress factors in paragraphs (a)(1)(i) and (ii)
of this section, it is in severe fiscal distress and its match
requirement will be reduced by 100% for the period specified in
paragraph (a)(3) of this section. If a local government participating
jurisdiction satisfies either distress factor in paragraphs (a)(1)(i)
or (ii) of this section, it is in fiscal distress and its match
requirement will be reduced by 50 percent, for the period specified in
paragraph (a)(4) of this section.
(i) Poverty rate. The average poverty rate in the participating
jurisdiction was equal to or greater than 125 percent of the average
national poverty rate during the calendar year for which the most
recent data are available, as determined according to information of
the Bureau of the Census.
(ii) Per capita income. The average per capita income in the
participating jurisdiction was less than 75 percent of the average
national per capita income, during the calendar year for which the most
recent data are available, as determined according to information from
the Bureau of the Census.
(2) Distress criteria for participating jurisdictions that are
States. If a State satisfies at least 2 of the 3 distress factors in
paragraphs (a)(2)(i) through (iii) of this section, it is in severe
fiscal distress and its match requirement will be reduced by 100% for
the period specified in paragraph (a)(3) of this section. If a State
satisfies any 1 of the 3 distress factors in paragraphs (a)(2)(i)
through (iii) of this section, it is in fiscal distress and its match
requirement will be reduced by 50 percent, for the period specified in
paragraph (a)(4) of this section.
(i) Poverty rate. The average poverty rate in the State was equal
to or greater than 125 percent of the average national poverty rate
during the calendar year for which the most recent data are available,
as determined according to information from the Bureau of the Census.
(ii) Per capita income. The average per capita income in the State
was less than 75 percent of the average national per capita income,
during the calendar year for which the most recent data are available,
as determined according to information from the Bureau of the Census.
(iii) Personal income growth. The average personal income growth
rate in the State over the most recent four quarters for which the data
are available was less than 75 percent of the average national personal
income growth rate during that period, as determined according to
information from the Bureau of Economic Analysis.
(3) Period of match reduction for severe fiscal distress. A 100%
match reduction is effective for the fiscal year in which the severe
fiscal distress determination is made and for the following fiscal
year.
(4) Period of match reduction for fiscal distress. A 50% match
reduction is effective for the fiscal year in which the fiscal distress
determination is made and for the following fiscal year, except that if
a severe fiscal distress determination is published in that following
fiscal year, the participating jurisdiction starts a new two-year match
reduction period in accordance with the provisions of paragraph (a)(3)
of this section.
(b) Reduction of match for participating jurisdictions in disaster
areas. If a participating jurisdiction is located in an area in which a
declaration of major disaster pursuant to the Robert T. Stafford
Disaster Relief and Emergency Assistance Act is made, it may request a
reduction of its matching requirement. For a local participating
jurisdiction, the HUD Field office may reduce the matching requirement
specified in Sec. 92.218 by up to 100 percent for the fiscal year in
which the declaration of major disaster is made and the following
fiscal year. For a State participating jurisdiction, the HUD Field
office may reduce the matching requirement specified in Sec. 92.218, by
up to 100 percent for the fiscal year in which the declaration of major
disaster is made and the following fiscal year with respect to any HOME
funds expended in an area to which the declaration of a major disaster
applies.
[[Page 48768]]
At its discretion and upon request of the participating jurisdiction,
the HUD Field Office may extend the reduction for an additional year.
Subpart F--Project Requirements
Sec. 92.250 Maximum per-unit subsidy amount and subsidy layering.
(a) Maximum per-unit subsidy amount. The amount of HOME funds that
a participating jurisdiction may invest on a per-unit basis in
affordable housing may not exceed the per-unit dollar limits
established by HUD under 24 CFR 221.514(b)(1) and (c) for elevator-type
projects, involving nonprofit mortgagors, insured under section
221(d)(3) of the National Housing Act (12 U.S.C. 1715l(d)(3)) that
apply to the area in which the housing is located. These limits are
available from the Multifamily Division in the HUD Field Office. If the
participating jurisdiction's per-unit subsidy amount has already been
increased to 210% as permitted in 24 CFR 221.514(c), upon request to
the Field Office, HUD will allow the per-unit subsidy amount to be
increased on a program-wide basis to an amount, up to 240% of the
original per unit limits.
(b) Subsidy layering. Before committing funds to a project, the
participating jurisdiction must evaluate the project in accordance with
guidelines that it has adopted for this purpose and will not invest any
more HOME funds, in combination with other governmental assistance,
than is necessary to provide affordable housing.
Sec. 92.251 Property standards.
(a) (1) Housing that is constructed or rehabilitated with HOME
funds must meet all applicable local codes, rehabilitation standards,
ordinances, and zoning ordinances at the time of project completion,
except as provided in paragraph (b) of this section. The participating
jurisdiction must have written standards for rehabilitation that ensure
that HOME-assisted housing is decent, safe, and sanitary. In the
absence of a local code for new construction or rehabilitation, HOME-
assisted new construction or rehabilitation must meet, as applicable:
one of three model codes (Uniform Building Code (ICBO), National
Building Code (BOCA), Standard Building Code (SBCCI)); or the Council
of American Building Officials (CABO) one or two family code; or the
Minimum Property Standards (MPS) in 24 CFR 200.925 or 200.926. To avoid
duplicative inspections when FHA financing is involved in a HOME-
assisted property, a participating jurisdiction may rely on a Minimum
Property Standards (MPS) inspection performed by a qualified person.
Newly constructed housing must meet the current edition of the Model
Energy Code published by the Council of American Building Officials.
(2) All other HOME-assisted housing must meet all applicable State
and local housing quality standards and code requirements and if there
are no such standards or code requirements, the housing must meet the
housing quality standards in 24 CFR 982.401.
(3) The housing must meet the accessibility requirements in the
regulations referenced in 24 CFR 5.105(a) which implement the Fair
Housing Act (42 U.S.C. 3601-19) and Section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794).
(b) The following requirements apply to housing for homeownership
that is to be rehabilitated after transfer of the ownership interest:
(1) Before the transfer of the homeownership interest, the
participating jurisdiction must:
(i) Inspect the housing for any defects that pose a danger to
health; and
(ii) Notify the prospective purchaser of the work needed to cure
the defects and the time by which defects must be cured and applicable
property standards met.
(2) The housing must be free from all noted health and safety
defects before occupancy and not later than 6 months after the
transfer.
(3) The housing must meet the property standards in paragraph
(a)(1) of this section not later than 2 years after transfer of the
ownership interest.
(c) An owner of rental housing assisted with HOME funds must
maintain the housing in compliance with all applicable State and local
housing quality standards and code requirements and if there are no
such standards or code requirements, the housing must meet the housing
quality standards in 24 CFR 982.401.
(d) All housing occupied by tenants receiving HOME tenant-based
rental assistance must meet the housing quality standards in 24 CFR
982.401.
Sec. 92.252 Qualification as affordable housing: Rental housing.
The HOME-assisted units in a rental housing project must be
occupied only by households that are eligible as low-income families
and must meet the following requirements to qualify as affordable
housing. The affordability requirements also apply to the HOME-assisted
non-owner-occupied units in single-family housing purchased with HOME
funds in accordance with Sec. 92.254.
(a) Rent limitation. HUD provides the following maximum HOME rent
limits. The maximum HOME rents are the lesser of:
(1) The fair market rent for existing housing for comparable units
in the area as established by HUD under 24 CFR 888.111; or
(2) A rent that does not exceed 30 percent of the adjusted income
of a family whose annual income equals 65 percent of the median income
for the area, as determined by HUD, with adjustments for number of
bedrooms in the unit. The HOME rent limits provided by HUD will include
average occupancy per unit and adjusted income assumptions.
(b) Additional Rent limitations. In rental projects with five or
more HOME-assisted rental units, twenty (20) percent of the HOME-
assisted units must be occupied by very low-income families and meet
one of following rent requirements:
(1) The rent does not exceed 30 percent of the annual income of a
family whose income equals 50 percent of the median income for the
area, as determined by HUD, with adjustments for smaller and larger
families. HUD provides the HOME rent limits which include average
occupancy per unit and adjusted income assumptions. However, if the
rent determined under this paragraph is higher than the applicable rent
under paragraph (a) of this section, then the maximum rent for units
under this paragraph is that calculated under paragraph (a) of this
section.
(2) The rent does not exceed 30 percent of the family's adjusted
income. If the unit receives Federal or State project-based rental
subsidy and the very low-income family pays as a contribution toward
rent not more than 30 percent of the family's adjusted income, then the
maximum rent (i.e., tenant contribution plus project-based rental
subsidy) is the rent allowable under the Federal or State project-based
rental subsidy program.
(c) Initial rent schedule and utility allowances. The participating
jurisdiction must establish maximum monthly allowances for utilities
and services (excluding telephone). The participating jurisdiction must
review and approve rents proposed by the owner for units subject to the
maximum rent limitations in paragraphs (a) or (b) of this section. For
all units subject to the maximum rent limitations in paragraphs (a) or
(b) of this section for which the tenant is paying utilities and
services, the participating jurisdiction must ensure that the rents do
not exceed
[[Page 48769]]
the maximum rent minus the monthly allowances for utilities and
services.
(d) Nondiscrimination against rental assistance subsidy holders.
The owner cannot refuse to lease HOME-assisted units to a certificate
or voucher holder under 24 CFR part 982--Section 8 Tenant-Based
Assistance: Unified Rule for Tenant-Based Assistance under the Section
8 Rental Certificate Program and the Section 8 Rental Voucher Program
or to the holder of a comparable document evidencing participation in a
HOME tenant-based rental assistance program because of the status of
the prospective tenant as a holder of such certificate, voucher, or
comparable HOME tenant-based assistance document.
(e) Periods of Affordability. The HOME-assisted units must meet the
affordability requirements for not less than the applicable period
specified in the following table, beginning after project completion.
The affordability requirements apply without regard to the term of any
loan or mortgage or the transfer of ownership. They must be imposed by
deed restrictions, covenants running with the land, or other mechanisms
approved by HUD, except that the affordability restrictions may
terminate upon foreclosure or transfer in lieu of foreclosure. The
participating jurisdiction may use purchase options, rights of first
refusal or other preemptive rights to purchase the housing before
foreclosure or deed in lieu of foreclosure to preserve affordability.
The affordability restrictions shall be revived according to the
original terms if, during the original affordability period, the owner
of record before the foreclosure, or deed in lieu of foreclosure, or
any entity that includes the former owner or those with whom the former
owner has or had family or business ties, obtains an ownership interest
in the project or property.
------------------------------------------------------------------------
Minimum
period of
Rental housing activity affordability
in years
------------------------------------------------------------------------
Rehabilitation or acquisition of existing housing per
unit amount of HOME funds: Under $15,000................ 5
$15,000 to $40,000....................................... 10
Over $40,000 or rehabilitation involving refinancing..... 15
New construction or acquisition of newly constructed
housing................................................. 20
------------------------------------------------------------------------
(f) Subsequent rents during the affordability period. (1) The
maximum HOME rent limits are recalculated on a periodic basis after HUD
determines fair market rents and median incomes. HUD then provides the
new maximum HOME rent limits to participating jurisdictions. Regardless
of changes in fair market rents and in median income over time, the
HOME rents for a project are not required to be lower than the HOME
rent limits for the project in effect at the time of project
commitment.
(2) The participating jurisdiction must provide project owners with
information on updated HOME rent limits so that rents may be adjusted
(not to exceed the maximum HOME rent limits in paragraph (f)(1) of this
section) in accordance with the written agreement between the
participating jurisdiction and the owner. Owners must annually provide
the participating jurisdiction with information on rents and occupancy
of HOME-assisted units to demonstrate compliance with this section.
(3) Any increase in rents for HOME-assisted units is subject to the
provisions of outstanding leases, and in any event, the owner must
provide tenants of those units not less than 30 days prior written
notice before implementing any increase in rents.
(g) Adjustment of HOME rent limits for a particular project. (1)
Changes in fair market rents and in median income over time should be
sufficient to maintain the financial viability of a project within the
HOME rent limits in this section.
(2) HUD may adjust the HOME rent limits for a project, only if HUD
finds that an adjustment is necessary to support the continued
financial viability of the project and only by an amount that HUD
determines is necessary to maintain continued financial viability of
the project. HUD expects that this authority will be used sparingly.
(h) Tenant income. The income of each tenant must be determined
initially in accordance with Sec. 92.203. In addition, each year during
the period of affordability the project owner must re-examine each
tenant's annual income in accordance with one of the options in
Sec. 92.203 selected by the participating jurisdiction. An owner of a
multifamily project with an affordability period of 10 years or more
who re-examines tenant's annual income through a statement and
certification in accordance with Sec. 92.203(a)(1)(ii), must examine
the income of each tenant, in accordance with Sec. 92.203(a)(1)(i),
every sixth year of the affordability period. Otherwise, an owner who
accepts the tenant's statement and certification in accordance with
Sec. 92.203(a)(1)(ii) is not required to examine the income of tenants
in multifamily or single-family projects unless there is evidence that
the tenant's written statement failed to completely and accurately
state information about the family's size or income.
(i) Over-income tenants. (1) HOME-assisted units continue to
qualify as affordable housing despite a temporary noncompliance caused
by increases in the incomes of existing tenants if actions satisfactory
to HUD are being taken to ensure that all vacancies are filled in
accordance with this section until the noncompliance is corrected.
(2) Tenants who no longer qualify as low-income families must pay
as rent the lesser of the amount payable by the tenant under State or
local law or 30 percent of the family's adjusted income, except that
tenants of HOME-assisted units that have been allocated low-income
housing tax credits by a housing credit agency pursuant to section 42
of the Internal Revenue Code of 1986 (26 U.S.C. 42) must pay rent
governed by section 42.
(j) Fixed and floating HOME units. In a project containing HOME-
assisted and other units, the participating jurisdiction may designate
fixed or floating HOME units. This designation must be made at the time
of project commitment. Fixed units remain the same throughout the
period of affordability. Floating units are changed to maintain
conformity with the requirements of this section during the period of
affordability so that the total number of housing units meeting the
requirements of this section remains the same, and each substituted
unit is comparable in terms of size, features, and number of bedrooms
to the originally designated HOME-assisted unit.
Sec. 92.253 Tenant and participant protections.
(a) Lease. The lease between a tenant and an owner of rental
housing assisted with HOME funds must be for not less than one year,
unless by mutual agreement between the tenant and the owner.
(b) Prohibited lease terms. The lease may not contain any of the
following provisions:
(1) Agreement to be sued. Agreement by the tenant to be sued, to
admit guilt, or to a judgment in favor of the owner in a lawsuit
brought in connection with the lease;
(2) Treatment of property. Agreement by the tenant that the owner
may take, hold, or sell personal property of household members without
notice to the tenant and a court decision on the rights of the parties.
This prohibition, however, does not apply to an
[[Page 48770]]
agreement by the tenant concerning disposition of personal property
remaining in the housing unit after the tenant has moved out of the
unit. The owner may dispose of this personal property in accordance
with State law;
(3) Excusing owner from responsibility. Agreement by the tenant not
to hold the owner or the owner's agents legally responsible for any
action or failure to act, whether intentional or negligent;
(4) Waiver of notice. Agreement of the tenant that the owner may
institute a lawsuit without notice to the tenant;
(5) Waiver of legal proceedings. Agreement by the tenant that the
owner may evict the tenant or household members without instituting a
civil court proceeding in which the tenant has the opportunity to
present a defense, or before a court decision on the rights of the
parties;
(6) Waiver of a jury trial. Agreement by the tenant to waive any
right to a trial by jury;
(7) Waiver of right to appeal court decision. Agreement by the
tenant to waive the tenant's right to appeal, or to otherwise challenge
in court, a court decision in connection with the lease; and
(8) Tenant chargeable with cost of legal actions regardless of
outcome. Agreement by the tenant to pay attorney's fees or other legal
costs even if the tenant wins in a court proceeding by the owner
against the tenant. The tenant, however, may be obligated to pay costs
if the tenant loses.
(c) Termination of tenancy. An owner may not terminate the tenancy
or refuse to renew the lease of a tenant of rental housing assisted
with HOME funds except for serious or repeated violation of the terms
and conditions of the lease; for violation of applicable Federal,
State, or local law; for completion of the tenancy period for
transitional housing; or for other good cause. To terminate or refuse
to renew tenancy, the owner must serve written notice upon the tenant
specifying the grounds for the action at least 30 days before the
termination of tenancy.
(d) Tenant selection. An owner of rental housing assisted with HOME
funds must adopt written tenant selection policies and criteria that:
(1) Are consistent with the purpose of providing housing for very
low-income and low-income families;
(2) Are reasonably related to program eligibility and the
applicants' ability to perform the obligations of the lease;
(3) Give reasonable consideration to the housing needs of families
that would have a Federal preference under section 6(c)(4)(A) of the
1937 Act (see Sec. 92.209(c)(2)) ;
(4) Provide for the selection of tenants from a written waiting
list in the chronological order of their application, insofar as is
practicable; and
(5) Give prompt written notification to any rejected applicant of
the grounds for any rejection.
Sec. 92.254 Qualification as affordable housing: homeownership.
(a) Acquisition with or without rehabilitation. Housing that is for
acquisition by a family must meet the affordability requirements of
this paragraph (a).
(1) The housing must be single-family housing (1- to 4-family
residence, condominium unit, cooperative unit, combination manufactured
home and lot, or manufactured home lot) .
(2) The housing must be modest housing as follows:
(i) In the case of acquisition of newly constructed housing or
standard housing, the housing has a purchase price for the type of
single family housing that does not exceed 95 percent of the median
purchase price for the area, as described in paragraph (a)(2)(iii) of
this section.
(ii) In the case of acquisition with rehabilitation, the housing
has an estimated value after rehabilitation that does not exceed 95
percent of the median purchase price for the area, described in
paragraph (a)(2)(iii) of this section.
(iii) If a participating jurisdiction intends to use HOME funds for
homebuyer assistance or for rehabilitation of owner-occupied single-
family properties, the participating jurisdiction may use the Single
Family Mortgage Limits under Section 203(b) of the National Housing Act
(12 U.S.C. 1709(b)) (which may be obtained from the HUD Field Office)
or it may determine 95 percent of the median area purchase price for
single family housing in the jurisdiction, as follows. The
participating jurisdiction must set forth the price for different types
of single family housing (1- to 4-unit family residence, condominium
unit, cooperative unit, combination of manufactured housing and lot or
manufactured housing lot) for the jurisdiction. The 95 percent of
median area purchase price must be established in accordance with a
market analysis which ensured that a sufficient number of recent
housing sales are included in the survey. Sales must cover the
requisite number of months based on volume: For 500 or more sales per
month, a one-month reporting period; for 250 through 499 sales per
month, a two-month reporting period; for less than 250 sales per month,
at least a three-month reporting period. The data must be listed in
ascending order of sales price. The address of the listed properties
must include the location within the participating jurisdiction. Lot,
square and subdivision data may be substituted for the street address.
The housing sales data must reflect all, or nearly all, of the one-
family house sales in the entire participating jurisdiction. To
determine the median, take the middle sale on the list if an odd number
of sales and if an even number, take the higher of the middle numbers
and consider it the median. After identifying the median sales price,
the amount should be multiplied by .95 to determine the 95 percent of
the median area purchase price. This information must be submitted to
the HUD Field Office for review.
(3) The housing must be acquired by a homebuyer whose family
qualifies as a low-income family and the housing must be the principal
residence of the family throughout the period described in paragraph
(a)(4) of this section.
(4) Periods of affordability. The HOME-assisted housing must meet
the affordability requirements for not less than the applicable period
specified in the following table, beginning after project completion.
The per unit amount of HOME funds and the affordability period that
they trigger are described more fully in paragraphs (a)(5)(i) (resale)
and (ii) (recapture) of this section.
------------------------------------------------------------------------
Minimum
period of
Homeownership assistance HOME amount per-unit affordability
in years
------------------------------------------------------------------------
Under $15,000............................................ 5
$15,000 to $40,000....................................... 10
Over $40,000............................................. 15
------------------------------------------------------------------------
(5) Resale and recapture. To ensure affordability, the
participating jurisdiction must impose either resale or recapture
requirements, at its option. The participating jurisdiction must
establish the resale or recapture requirements that comply with the
standards of this section and set forth the requirements in its
consolidated plan. HUD must determine that they are appropriate.
(i) Resale. Resale requirements must ensure, if the housing does
not continue to be the principal residence of the family for the
duration of the period of affordability, that the housing is made
available for subsequent purchase only
[[Page 48771]]
to a buyer whose family qualifies as a low-income family and will use
the property as its principal residence. The resale requirement must
also ensure that the price at resale provides the original HOME-
assisted owner a fair return on investment (including the homeowner's
investment and any capital improvement) and ensure that the housing
will remain affordable to a reasonable range of low-income homebuyers.
The period of affordability is based on the total amount of HOME funds
invested in the housing.
(A) Except as provided in paragraph (a)(5)(i)(B) of this section,
deed restrictions, covenants running with the land, or other similar
mechanisms must be used as the mechanism to impose the resale
requirements. The affordability restrictions may terminate upon
occurrence of any of the following termination events: foreclosure,
transfer in lieu of foreclosure or assignment of an FHA insured
mortgage to HUD. The participating jurisdiction may use purchase
options, rights of first refusal or other preemptive rights to purchase
the housing before foreclosure to preserve affordability. The
affordability restrictions shall be revived according to the original
terms if, during the original affordability period, the owner of record
before the termination event, obtains an ownership interest in the
housing.
(B) Certain housing may be presumed to meet the resale restrictions
(i.e., the housing will be available and affordable to a reasonable
range of low-income homebuyers; a low-income homebuyer will occupy the
housing as the family's principal residence; and the original owner
will be afforded a fair return on investment) during the period of
affordability without the imposition of enforcement mechanisms by the
participating jurisdiction. The presumption must be based upon a market
analysis of the neighborhood in which the housing is located. The
market analysis must include an evaluation of the location and
characteristics of the housing and residents in the neighborhood (e.g.,
sale prices, age and amenities of the housing stock, incomes of
residents, percentage of owner-occupants) in relation to housing and
incomes in the housing market area. An analysis of the current and
projected incomes of neighborhood residents for an average period of
affordability for homebuyers in the neighborhood must support the
conclusion that a reasonable range of low-income families will continue
to qualify for mortgage financing. For example, an analysis shows that
the housing is modestly priced within the housing market area and that
families with incomes of 65% to 80% of area median can afford monthly
payments under average FHA terms without other government assistance
and housing will remain affordable at least during the next five to
seven years compared to other housing in the market area; the size and
amenities of the housing are modest and substantial rehabilitation will
not significantly increase the market value; the neighborhood has
housing that is not currently owned by the occupants, but the
participating jurisdiction is encouraging homeownership in the
neighborhood by providing homeownership assistance and by making
improvements to the streets, sidewalks, and other public facilities and
services. If a participating jurisdiction in preparing a neighborhood
revitalization strategy under Sec. 91.215(e)(2) of its consolidated
plan or Empowerment Zone or Enterprise Community application under 24
CFR part 597 has incorporated the type of market data described above,
that submission may serve as the required analysis under this section.
If the participating jurisdiction continues to provide homeownership
assistance for housing in the neighborhood, it must periodically update
the market analysis to verify the original presumption of continued
affordability.
(ii) Recapture. Recapture provisions must ensure that the
participating jurisdiction recoups all or a portion of the HOME
assistance to the homebuyers, if the housing does not continue to be
the principal residence of the family for the duration of the period of
affordability. The participating jurisdiction may structure its
recapture provisions based on its program design and market conditions.
The period of affordability is based upon the total amount of HOME
funds subject to recapture described in paragraph (a)(5)(ii)(A)(5) of
this section.
(A) The following options for recapture requirements are acceptable
to HUD. The participating jurisdiction may adopt, modify or develop its
own recapture requirements for HUD approval.
(1) Recapture entire amount. The participating jurisdiction may
recapture the entire amount of the HOME investment from the homeowner.
(2) Reduction during affordability period. The participating
jurisdiction may reduce the HOME investment amount to be recaptured on
a prorata basis for the time the homeowner has owned and occupied the
housing measured against the required affordability period.
(3) Shared net proceeds. If the net proceeds are not sufficient to
recapture the full HOME investment (or a reduced amount as provided for
in paragraph (a)(5)(ii)(A)(2) of this section) plus enable the
homeowner to recover the amount of the homeowner's downpayment and any
capital improvement investment made by the owner since purchase, the
participating jurisdiction may share the net proceeds. The net proceeds
are the sales price minus loan repayment (other than HOME funds) and
closing costs. The net proceeds may be divided proportionally as set
forth in the following mathematical formulas:
[GRAPHIC] [TIFF OMITTED] TR16SE96.000
(4) Owner investment returned first. The participating jurisdiction
may permit the homebuyer to recover the homebuyer's entire investment
(downpayment and capital improvements made by the owner since purchase)
before recapturing the HOME investment.
(5) Amount subject to recapture. The HOME investment that is
subject to recapture is based on the amount of HOME assistance that
enabled the homebuyer to buy the dwelling unit. This includes any HOME
assistance that reduced the purchase price from fair market value to an
affordable price, but excludes the amount between the cost of producing
the unit and the market value of the property (i.e., the development
subsidy). The recaptured funds must be
[[Page 48772]]
used to carry out HOME-eligible activities in accordance with the
requirements of this part. If the HOME assistance is only used for the
development subsidy and therefore not subject to recapture, the resale
option must be used.
(6) Special considerations for single-family properties with more
than one unit. If the HOME funds are only used to assist a low-income
homebuyer to acquire one unit in single-family housing containing more
than one unit and the assisted unit will be the principal residence of
the homebuyer, the affordability requirements of this section apply
only to the assisted unit. If HOME funds are also used to assist the
low-income homebuyer to acquire one or more of the rental units in the
single-family housing, the affordability requirements of Sec. 92.252
apply to assisted rental units, except that the participating
jurisdiction may impose resale or recapture restrictions on all
assisted units (owner-occupied and rental units) in the single family
housing. If resale restrictions are used, the affordability
requirements on all assisted units continue for the period of
affordability. If recapture restrictions are used, the affordability
requirements on the assisted rental units may be terminated, at the
discretion of the participating jurisdiction, upon recapture of the
HOME investment. (If HOME funds are used to assist only the rental
units in such a property then the requirements of Sec. 92.252 would
apply and the owner-occupied unit would not be subject to the income
targeting or affordability provisions of Sec. 92.254.)
(7) Lease-purchase. HOME funds may be used to assist homebuyers
through lease-purchase programs. The housing must be purchased by a
homebuyer within 36 months of signing the lease-purchase agreement. The
homebuyer must qualify as a low-income family at the time the lease-
purchase agreement is signed and at the time the housing is transferred
if more than six months have elapsed since the participating
jurisdiction determined that the family was income eligible. If HOME
funds are used to acquire housing that will be resold to a homebuyer
through a lease-purchase program, the HOME affordability requirements
for rental housing in Sec. 92.252 shall apply if the housing is not
transferred to a homebuyer within forty-two months after project
completion.
(b) Rehabilitation not involving acquisition. Housing that is
currently owned by a family qualifies as affordable housing only if:
(1) The estimated value of the property, after rehabilitation, does
not exceed 95 percent of the median purchase price for the area,
described in paragraph (a)(2)(iii) of this section; and
(2) The housing is the principal residence of an owner whose family
qualifies as a low-income family at the time HOME funds are committed
to the housing.
(c) Ownership interest. The ownership in the housing assisted under
this section must meet the definition of ``homeownership'' in
Sec. 92.2.
(d) New construction without acquisition. Newly constructed housing
that is built on property currently owned by a family which will occupy
the housing upon completion, qualifies as affordable housing if it
meets the requirements under paragraph (a) of this section.
Sec. 92.255 Converting rental units to homeownership units for
existing tenants.
The participating jurisdiction may permit the owner of HOME-
assisted rental units to convert the rental units to homeownership
units by selling, donating, or otherwise conveying the units to the
existing tenants to enable the tenants to become homeowners in
accordance with the requirements of Sec. 92.254. If no additional HOME
funds are used to enable the tenants to become homeowners, the
homeownership units are subject to a minimum period of affordability
equal to the remaining affordable period if the units continued as
rental units. If additional HOME funds are used to directly assist the
tenants to become homeowners, the minimum period of affordability is
the affordability period under Sec. 92.254(a)(4), based on the amount
of direct homeownership assistance provided.
Sec. 92.256 [Reserved]
Sec. 92.257 Religious organizations.
HOME funds may not be provided to primarily religious
organizations, such as churches, for any activity including secular
activities. In addition, HOME funds may not be used to rehabilitate or
construct housing owned by primarily religious organizations or to
assist primarily religious organizations in acquiring housing. However,
HOME funds may be used by a secular entity to acquire housing from a
primarily religious organization, and a primarily religious entity may
transfer title to its property to a wholly secular entity and the
entity may participate in the HOME program in accordance with the
requirements of this part. The entity may be an existing or newly
established entity, which may be an entity established by the religious
organization. The completed housing project must be used exclusively by
the owner entity for secular purposes, available to all persons
regardless of religion. In particular, there must be no religious or
membership criteria for tenants of the property.
Sec. 92.258 Elder cottage housing opportunity (ECHO) units.
(a) General. HOME funds may be used for the initial purchase and
initial placement costs of elder cottage housing opportunity (ECHO)
units that meet the requirements of this section, and that are small,
free-standing, barrier-free, energy-efficient, removable, and designed
to be installed adjacent to existing single-family dwellings.
(b) Eligible owners. The owner of a HOME-assisted ECHO unit may be:
(1) The owner-occupant of the single-family host property on which
the ECHO unit will be located;
(2) A participating jurisdiction; or
(3) A non-profit organization.
(c) Eligible tenants. During the affordability period, the tenant
of a HOME-assisted ECHO unit must be an elderly or disabled family as
defined in 24 CFR 5.403 and must also be a low-income family.
(d) Applicable requirements. The requirements of Sec. 92.252 apply
to HOME-assisted ECHO units, with the following modifications:
(1) Only one ECHO unit may be provided per host property.
(2) The ECHO unit owner may choose whether or not to charge the
tenant of the ECHO unit rent, but if a rent is charged, it must meet
the requirements of Sec. 92.252.
(3) The ECHO housing must remain affordable for the period
specified in Sec. 92.252(e). If within the affordability period the
original occupant no longer occupies the unit, the ECHO unit owner
must:
(i) Rent the unit to another eligible occupant on site;
(ii) Move the ECHO unit to another site for occupancy by an
eligible occupant; or
(iii) If the owner of the ECHO unit is the host property owner-
occupant, the owner may repay the HOME funds in accordance with the
recapture provisions imposed by the participating jurisdiction
consistent with Sec. 92.254(a)(5)(ii). The participating jurisdiction
must use the recaptured HOME funds for additional HOME activities.
(4) The participating jurisdiction has the responsibility to
enforce the project requirements applicable to ECHO units.
[[Page 48773]]
Subpart G--Community Housing Development Organizations
Sec. 92.300 Set-aside for community housing development organizations
(CHDOs).
(a)(1) Within 24 months after HUD notifies the participating
jurisdiction of HUD's execution of the HOME Investment Partnerships
Agreement, the participating jurisdiction must reserve not less than 15
percent of the HOME allocation for investment only in housing to be
developed, sponsored, or owned by community housing development
organizations. For a State, the HOME allocation includes funds
reallocated under Sec. 92.451(c)(2)(i) and, for a unit of general local
government, funds transferred from a State under Sec. 92.102(b). The
funds are reserved when a participating jurisdiction enters into a
written agreement with the community housing development organization.
The funds must be provided to a community housing development
organization or its subsidiary. If a CHDO owns the project in
partnership, it or its wholly owned for-profit or non-profit subsidiary
must be the managing general partner. In acting in any of the
capacities specified, the community housing development organization
must have effective project control. In addition, a community housing
development organization, in connection with housing it develops,
sponsors or owns with HOME funds provided under this section, may
provide direct homeownership assistance (e.g. downpayment assistance)
and not be considered a subrecipient.
(2) The participating jurisdiction determines the form of
assistance, e.g., grant or loan, that the community housing development
organization receives and whether any proceeds must be returned to the
participating jurisdiction or may be retained by the community housing
development organization. While the proceeds the participating
jurisdiction permits the community housing development organization to
retain are not subject to the requirements of this part, the
participating jurisdiction must specify in the written agreement with
the community housing development organization whether they are to be
used for HOME-eligible or other housing activities to benefit low-
income families. However, funds recaptured because housing no longer
meets the affordability requirements under Sec. 92.254(a)(5)(ii) are
subject to the requirements of this part in accordance with
Sec. 92.503.
(b) Each participating jurisdiction must make reasonable efforts to
identify community housing development organizations that are capable,
or can reasonably be expected to become capable, of carrying out
elements of the jurisdiction's approved consolidated plan and to
encourage such community housing development organizations to do so. If
during the first 24 months of its participation in the HOME Program a
participating jurisdiction cannot identify a sufficient number of
capable community housing development organizations, up to 20 percent
of the minimum community housing development organization setaside of
15 percent specified in paragraph (a) of this section, above, (but not
more than $150,000 during the 24 month period) may be committed to
develop the capacity of community housing development organizations in
the jurisdiction.
(c) Up to 10 percent of the HOME funds reserved under this section
may be used for activities specified under Sec. 92.301.
(d) HOME funds required to be reserved under this section are
subject to reduction, as provided in Sec. 92.500(d).
(e) If funds for operating expenses are provided under Sec. 92.208
to a community housing development organization that is not also
receiving funds under paragraph (a) of this section for housing to be
developed, sponsored or owned by the community housing development
organization, the participating jurisdiction must enter into a written
agreement with the community housing development organization that
provides that the community housing development organization is
expected to receive funds under paragraph (a) of this section within 24
months of receiving the funds for operating expenses, and specifies the
terms and conditions upon which this expectation is based.
(f) Limitation. A community housing development organization may
not receive HOME funding for any fiscal year in an amount that provides
more than 50 percent or $50,000, whichever is greater, of the community
housing development organization's total operating expenses in that
fiscal year. This also includes organizational support and housing
education provided under section 233(b)(1), (2), and (6) of the Act, as
well as funds for operating expenses provided under Sec. 92.208.
Sec. 92.301 Project-specific assistance to community housing
development organizations.
(a) Project-specific technical assistance and site control loans.
(1) General. Within the percentage specified in Sec. 92.300(c), HOME
funds may be used by a participating jurisdiction to provide technical
assistance and site control loans to community housing development
organizations in the early stages of site development for an eligible
project. These loans may not exceed amounts that the participating
jurisdiction determines to be customary and reasonable project
preparation costs allowable under paragraph (a)(2) of this section. All
costs must be related to a specific eligible project or projects.
(2) Allowable costs. A loan may be provided to cover project costs
necessary to determine project feasibility (including costs of an
initial feasibility study), consulting fees, costs of preliminary
financial applications, legal fees, architectural fees, engineering
fees, engagement of a development team, option to acquire property,
site control and title clearance. General operational expenses of the
community housing development organization are not allowable costs.
(3) Repayment. The community housing development organization must
repay the loan to the participating jurisdiction from construction loan
proceeds or other project income. The participating jurisdiction may
waive repayment of the loan, in part or in whole, if there are
impediments to project development that the participating jurisdiction
determines are reasonably beyond the control of the borrower.
(b) Project-specific seed money loans. (1) General. Within the
percentage specified in Sec. 92.300(c), HOME funds may be used to
provide loans to community housing development organizations to cover
preconstruction project costs that the participating jurisdiction
determines to be customary and reasonable, including, but not limited
to the costs of obtaining firm construction loan commitments,
architectural plans and specifications, zoning approvals, engineering
studies, and legal fees.
(2) Eligible sponsors. A loan may be provided only to a community
housing development organization that has, with respect to the project
concerned, site control (evidenced by a deed, a sales contract, or an
option contract to acquire the property), a preliminary financial
commitment, and a capable development team.
(3) Repayment. The community housing development organization must
repay the loan to the participating jurisdiction from construction loan
proceeds or other project income. The participating jurisdiction may
waive repayment of the loan, in whole or in
[[Page 48774]]
part, if there are impediments to project development that the
participating jurisdiction determines are reasonably beyond the control
of the community housing development organization.
Sec. 92.302 Housing education and organizational support.
HUD is authorized to provide education and organizational support
assistance, in conjunction with HOME funds made available to community
housing development organizations in accordance with section 233 of the
Act. HUD will publish a notice in the Federal Register announcing the
availability of funding under this section, as appropriate. The notice
need not include funding for each of the eligible activities, but may
target funding from among the eligible activities.
Sec. 92.303 Tenant participation plan.
A community housing development organization that receives
assistance under this part must adhere to a fair lease and grievance
procedure approved by the participating jurisdiction and provide a plan
for and follow a program of tenant participation in management
decisions.
Subpart H--Other Federal Requirements
Sec. 92.350 Other Federal requirements.
(a) The Federal requirements set forth in 24 CFR 5.105(a),
Nondiscrimination and equal opportunity, are applicable to participants
in the HOME program.
(b) OMB Circulars referenced in this part may be obtained from:
Executive Office of the President, Publication Service, 725 17th
Street, N.W., Suite G-2200, Washington, DC 20503; telephone: (202) 395-
7332.
Sec. 92.351 Affirmative marketing; minority outreach program.
(a) Affirmative marketing. (1) Each participating jurisdiction must
adopt affirmative marketing procedures and requirements for rental and
homebuyer projects containing 5 or more HOME-assisted housing units.
Affirmative marketing steps consist of actions to provide information
and otherwise attract eligible persons in the housing market area to
the available housing without regard to race, color, national origin,
sex, religion, familial status or disability. (The affirmative
marketing procedures do not apply to families with Section 8 tenant-
based rental housing assistance or families with tenant-based rental
assistance provided with HOME funds.)
(2) The affirmative marketing requirements and procedures adopted
must include:
(i) Methods for informing the public, owners, and potential tenants
about Federal fair housing laws and the participating jurisdiction's
affirmative marketing policy (e.g., the use of the Equal Housing
Opportunity logotype or slogan in press releases and solicitations for
owners, and written communication to fair housing and other groups);
(ii) Requirements and practices each owner must adhere to in order
to carry out the participating jurisdiction's affirmative marketing
procedures and requirements (e.g., use of commercial media, use of
community contacts, use of the Equal Housing Opportunity logotype or
slogan, and display of fair housing poster);
(iii) Procedures to be used by owners to inform and solicit
applications from persons in the housing market area who are not likely
to apply for the housing without special outreach (e.g., use of
community organizations, places of worship, employment centers, fair
housing groups, or housing counseling agencies);
(iv) Records that will be kept describing actions taken by the
participating jurisdiction and by owners to affirmatively market units
and records to assess the results of these actions; and
(v) A description of how the participating jurisdiction will
annually assess the success of affirmative marketing actions and what
corrective actions will be taken where affirmative marketing
requirements are not met.
(3) A State that distributes HOME funds to units of general local
government must require each unit of general local government to adopt
affirmative marketing procedures and requirements that meet the
requirement in paragraphs (a) and (b) of this section.
(b) Minority outreach. A participating jurisdiction must prescribe
procedures acceptable to HUD to establish and oversee a minority
outreach program within its jurisdiction to ensure the inclusion, to
the maximum extent possible, of minorities and women, and entities
owned by minorities and women, including, without limitation, real
estate firms, construction firms, appraisal firms, management firms,
financial institutions, investment banking firms, underwriters,
accountants, and providers of legal services, in all contracts entered
into by the participating jurisdiction with such persons or entities,
public and private, in order to facilitate the activities of the
participating jurisdiction to provide affordable housing authorized
under this Act or any other Federal housing law applicable to such
jurisdiction. Section 85.36(e) of this title describes actions to be
taken by a participating jurisdiction to assure that minority business
enterprises and women business enterprises are used when possible in
the procurement of property and services.
Sec. 92.352 Environmental review.
(a) General. The environmental effects of each activity carried out
with HOME funds must be assessed in accordance with the provisions of
the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321)
and the related authorities listed in HUD's implementing regulations at
24 CFR parts 50 and 58.
(b) Responsibility for review. (1) The jurisdiction (e.g., the
participating jurisdiction or State recipient) or insular area must
assume responsibility for environmental review, decisionmaking, and
action for each activity that it carries out with HOME funds, in
accordance with the requirements imposed on a recipient under 24 CFR
part 58. No funds may be committed to a HOME activity or project before
the completion of the environmental review and approval of the request
for release of funds and related certification, except as authorized by
24 CFR part 58.
(2) A State participating jurisdiction must also assume
responsibility for approval of requests for release of HOME funds
submitted by State recipients.
(3) HUD will perform the environmental review, in accordance with
24 CFR part 50, for a competitively awarded application for HOME funds
submitted to HUD by an entity that is not a jurisdiction.
Sec. 92.353 Displacement, relocation, and acquisition.
(a) Minimizing displacement. Consistent with the other goals and
objectives of this part, the participating jurisdiction must ensure
that it has taken all reasonable steps to minimize the displacement of
persons (families, individuals, businesses, nonprofit organizations,
and farms) as a result of a project assisted with HOME funds. To the
extent feasible, residential tenants must be provided a reasonable
opportunity to lease and occupy a suitable, decent, safe, sanitary, and
affordable dwelling unit in the building/complex upon completion of the
project.
(b) Temporary relocation. The following policies cover residential
tenants who will not be required to move permanently but who must
[[Page 48775]]
relocate temporarily for the project. Such tenants must be provided:
(1) Reimbursement for all reasonable out-of-pocket expenses
incurred in connection with the temporary relocation, including the
cost of moving to and from the temporarily occupied housing and any
increase in monthly rent/utility costs.
(2) Appropriate advisory services, including reasonable advance
written notice of:
(i) The date and approximate duration of the temporary relocation;
(ii) The location of the suitable, decent, safe, and sanitary
dwelling to be made available for the temporary period;
(iii) The terms and conditions under which the tenant may lease and
occupy a suitable, decent, safe, and sanitary dwelling in the building/
complex upon completion of the project; and
(iv) The provisions of paragraph (b)(1) of this section.
(c) Relocation assistance for displaced persons. (1) General. A
displaced person (defined in paragraph (c)(2) of this section) must be
provided relocation assistance at the levels described in, and in
accordance with the requirements of the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C.
4201-4655) and 49 CFR part 24. A ``displaced person'' must be advised
of his or her rights under the Fair Housing Act and, if the comparable
replacement dwelling used to establish the amount of the replacement
housing payment to be provided to a minority person is located in an
area of minority concentration, the minority person also must be given,
if possible, referrals to comparable and suitable, decent, safe, and
sanitary replacement dwellings not located in such areas.
(2) Displaced Person. (i) For purposes of paragraph (c) of this
section, the term displaced person means a person (family individual,
business, nonprofit organization, or farm, including any corporation,
partnership or association) that moves from real property or moves
personal property from real property, permanently, as a direct result
of acquisition, rehabilitation, or demolition for a project assisted
with HOME funds. This includes any permanent, involuntary move for an
assisted project, including any permanent move from the real property
that is made:
(A) After notice by the owner to move permanently from the
property, if the move occurs on or after:
(1) The date of the submission of an application to the
participating jurisdiction or HUD, if the applicant has site control
and the application is later approved; or
(2) The date the jurisdiction approves the applicable site, if the
applicant does not have site control at the time of the application; or
(B) Before the date described in paragraph (c)(2)(i)(A) of this
section, if the jurisdiction or HUD determines that the displacement
resulted directly from acquisition, rehabilitation, or demolition for
the project; or
(C) By a tenant-occupant of a dwelling unit, if any one of the
following three situations occurs:
(1) The tenant moves after execution of the agreement covering the
acquisition, rehabilitation, or demolition and the move occurs before
the tenant is provided written notice offering the tenant the
opportunity to lease and occupy a suitable, decent, safe, and sanitary
dwelling in the same building/complex upon completion of the project
under reasonable terms and conditions. Such reasonable terms and
conditions must include a term of at least one year at a monthly rent
and estimated average monthly utility costs that do not exceed the
greater of:
(i) The tenant's monthly rent before such agreement and estimated
average monthly utility costs; or
(ii) The total tenant payment, as determined under 24 CFR 813.107,
if the tenant is low-income, or 30 percent of gross household income,
if the tenant is not low-income; or
(2) The tenant is required to relocate temporarily, does not return
to the building/complex, and either
(i) The tenant is not offered payment for all reasonable out-of-
pocket expenses incurred in connection with the temporary relocation;
or
(ii) Other conditions of the temporary relocation are not
reasonable; or
(3) The tenant is required to move to another dwelling unit in the
same building/complex but is not offered reimbursement for all
reasonable out-of-pocket expenses incurred in connection with the move,
or other conditions of the move are not reasonable.
(ii) Notwithstanding paragraph (c)(2)(i) of this section, a person
does not qualify as a displaced person if:
(A) The person has been evicted for cause based upon a serious or
repeated violation of the terms and conditions of the lease or
occupancy agreement, violation of applicable federal, State or local
law, or other good cause, and the participating jurisdiction determines
that the eviction was not undertaken for the purpose of evading the
obligation to provide relocation assistance. The effective date of any
termination or refusal to renew must be preceded by at least 30 days
advance written notice to the tenant specifying the grounds for the
action.
(B) The person moved into the property after the submission of the
application but, before signing a lease and commencing occupancy, was
provided written notice of the project, its possible impact on the
person (e.g., the person may be displaced, temporarily relocated, incur
a rent increase), and the fact that the person would not qualify as a
``displaced person'' (or for any assistance under this section) as a
result of the project;
(C) The person is ineligible under 49 CFR 24.2(g)(2); or
(D) HUD determines that the person was not displaced as a direct
result of acquisition, rehabilitation, or demolition for the project.
(iii) The jurisdiction may, at any time, ask HUD to determine
whether a displacement is or would be covered by this rule.
(3) Initiation of negotiations. For purposes of determining the
formula for computing replacement housing assistance to be provided
under paragraph (c) of this section to a tenant displaced from a
dwelling as a direct result of private-owner rehabilitation, demolition
or acquisition of the real property, the term initiation of
negotiations means the execution of the agreement covering the
acquisition, rehabilitation, or demolition.
(d) Optional relocation assistance. The participating jurisdiction
may provide relocation payments and other relocation assistance to
families, individuals, businesses, nonprofit organizations, and farms
displaced by a project assisted with HOME funds where the displacement
is not subject to paragraph (c) of this section. The jurisdiction may
also provide relocation assistance to persons covered under paragraph
(c) of this section beyond that required. For any such assistance that
is not required by State or local law, the jurisdiction must adopt a
written policy available to the public that describes the optional
relocation assistance that it has elected to furnish and provides for
equal relocation assistance within each class of displaced persons.
(e) Residential antidisplacement and relocation assistance plan.
The participating jurisdiction shall comply with the requirements of 24
CFR part 42, subpart B.
(f) Real property acquisition requirements. The acquisition of real
property for a project is subject to the URA and the requirements of 49
CFR part 24, subpart B.
(g) Appeals. A person who disagrees with the participating
jurisdiction's
[[Page 48776]]
determination concerning whether the person qualifies as a displaced
person, or the amount of relocation assistance for which the person may
be eligible, may file a written appeal of that determination with the
jurisdiction. A low-income person who is dissatisfied with the
jurisdiction's determination on his or her appeal may submit a written
request for review of that determination to the HUD Field Office.
Sec. 92.354 Labor.
(a) General. (1) Every contract for the construction
(rehabilitation or new construction) of housing that includes 12 or
more units assisted with HOME funds must contain a provision requiring
the payment of not less than the wages prevailing in the locality, as
predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act
(40 U.S.C. 276a-276a-5), to all laborers and mechanics employed in the
development of any part of the housing. Such contracts must also be
subject to the overtime provisions, as applicable, of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 327-332).
(2) The contract for construction must contain these wage
provisions if HOME funds are used for any project costs in Sec. 92.206,
including construction or nonconstruction costs, of housing with 12 or
more HOME-assisted units. When HOME funds are only used to assist
homebuyers to acquire single-family housing, and not for any other
project costs, the wage provisions apply to the construction of the
housing if there is a written agreement with the owner or developer of
the housing that HOME funds will be used to assist homebuyers to buy
the housing and the construction contract covers 12 or more housing
units to be purchased with HOME assistance. The wage provisions apply
to any construction contract that includes a total of 12 or more HOME-
assisted units, whether one or more than one project is covered by the
construction contract. Once they are determined to be applicable, the
wage provisions must be contained in the construction contract so as to
cover all laborers and mechanics employed in the development of the
entire project, including portions other than the assisted units.
Arranging multiple construction contracts within a single project for
the purpose of avoiding the wage provisions is not permitted.
(3) Participating jurisdictions, contractors, subcontractors, and
other participants must comply with regulations issued under these acts
and with other Federal laws and regulations pertaining to labor
standards and HUD Handbook 1344.1 (Federal Labor Standards Compliance
in Housing and Community Development Programs), as applicable.
Participating jurisdictions must require certification as to compliance
with the provisions of this section before making any payment under
such contract.
(b) Volunteers. The prevailing wage provisions of paragraph (a) of
this section do not apply to an individual who receives no compensation
or is paid expenses, reasonable benefits, or a nominal fee to perform
the services for which the individual volunteered and who is not
otherwise employed at any time in the construction work. See 24 CFR
part 70.
(c) Sweat equity. The prevailing wage provisions of paragraph (a)
of this section do not apply to members of an eligible family who
provide labor in exchange for acquisition of a property for
homeownership or provide labor in lieu of, or as a supplement to, rent
payments.
Sec. 92.355 Lead-based paint.
Housing assisted with HOME funds is subject to the Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4821 et seq.) and 24 CFR part 35.
The lead-based paint provisions of 24 CFR 982.401(j) also apply,
irrespective of the applicable property standard under Sec. 92.251. In
a project in which not all units are assisted with HOME funds, the
lead-based paint requirements apply to all units and common areas in
the project. Unless otherwise provided, the participating jurisdiction
is responsible for testing and abatement activities.
Sec. 92.356 Conflict of interest.
(a) Applicability. In the procurement of property and services by
participating jurisdictions, State recipients, and subrecipients, the
conflict of interest provisions in 24 CFR 85.36 and 24 CFR 84.42,
respectively, apply. In all cases not governed by 24 CFR 85.36 and 24
CFR 84.42, the provisions of this section apply.
(b) Conflicts prohibited. No persons described in paragraph (c) of
this section who exercise or have exercised any functions or
responsibilities with respect to activities assisted with HOME funds or
who are in a position to participate in a decisionmaking process or
gain inside information with regard to these activities, may obtain a
financial interest or benefit from a HOME-assisted activity, or have an
interest in any contract, subcontract or agreement with respect
thereto, or the proceeds thereunder, either for themselves or those
with whom they have family or business ties, during their tenure or for
one year thereafter.
(c) Persons covered. The conflict of interest provisions of
paragraph (b) of this section apply to any person who is an employee,
agent, consultant, officer, or elected official or appointed official
of the participating jurisdiction, State recipient, or subrecipient
which are receiving HOME funds.
(d) Exceptions: Threshold requirements. Upon the written request of
the participating jurisdiction, HUD may grant an exception to the
provisions of paragraph (b) of this section on a case-by-case basis
when it determines that the exception will serve to further the
purposes of the HOME Investment Partnerships Program and the effective
and efficient administration of the participating jurisdiction's
program or project. An exception may be considered only after the
participating jurisdiction has provided the following:
(1) A disclosure of the nature of the conflict, accompanied by an
assurance that there has been public disclosure of the conflict and a
description of how the public disclosure was made; and
(2) An opinion of the participating jurisdiction's or State
recipient's attorney that the interest for which the exception is
sought would not violate State or local law.
(e) Factors to be considered for exceptions. In determining whether
to grant a requested exception after the participating jurisdiction has
satisfactorily met the requirements of paragraph (d) of this section,
HUD will consider the cumulative effect of the following factors, where
applicable:
(1) Whether the exception would provide a significant cost benefit
or an essential degree of expertise to the program or project which
would otherwise not be available;
(2) Whether the person affected is a member of a group or class of
low-income persons intended to be the beneficiaries of the assisted
activity, and the exception will permit such person to receive
generally the same interests or benefits as are being made available or
provided to the group or class;
(3) Whether the affected person has withdrawn from his or her
functions or responsibilities, or the decisionmaking process with
respect to the specific assisted activity in question;
(4) Whether the interest or benefit was present before the affected
person was in a position as described in paragraph (c) of this section;
(5) Whether undue hardship will result either to the participating
jurisdiction or the person affected when weighed against the public
interest served by avoiding the prohibited conflict; and
[[Page 48777]]
(6) Any other relevant considerations.
(f) Owners and Developers. (1) No owner, developer or sponsor of a
project assisted with HOME funds (or officer, employee, agent or
consultant of the owner, developer or sponsor) whether private, for
profit or non-profit (including a community housing development
organization (CHDO) when acting as an owner, developer or sponsor) may
occupy a HOME-assisted affordable housing unit in a project. This
provision does not apply to an owner-occupant of single-family housing
or to an employee or agent of the owner or developer of a rental
housing project who occupies a HOME assisted unit as the project
manager or maintenance worker.
(2) Exceptions. Upon written request of a housing owner or
developer, the participating jurisdiction (or State recipient, if
authorized by the State participating jurisdiction) may grant an
exception to the provisions of paragraph (f)(1) of this section on a
case-by-case basis when it determines that the exception will serve to
further the purposes of the HOME program and the effective and
efficient administration of the owner's or developer's HOME-assisted
project. In determining whether to grant a requested exception, the
participating jurisdiction shall consider the following factors:
(i) Whether the person receiving the benefit is a member of a group
or class of low-income persons intended to be the beneficiaries of the
assisted housing, and the exception will permit such person to receive
generally the same interests or benefits as are being made available or
provided to the group or class;
(ii) Whether the person has withdrawn from his or her functions or
responsibilities, or the decisionmaking process with respect to the
specific assisted housing in question;
(iii) Whether the tenant protection requirements of Sec. 92.253 are
being observed;
(iv) Whether the affirmative marketing requirements of Sec. 92.351
are being observed and followed; and
(v) Any other factor relevant to the participating jurisdiction's
determination, including the timing of the requested exception.
Sec. 92.357 Executive Order 12372.
(a) General. Executive Order 12372, as amended by Executive Order
12416 (3 CFR, 1982 Comp., p. 197 and 3 CFR, 1983 Comp., p. 186)
(Intergovernmental Review of Federal Programs) and HUD's implementing
regulations at 24 CFR part 52, allow each State to establish its own
process for review and comment on proposed Federal financial assistance
programs.
(b) Applicability. Executive Order 12372 applies to applications
submitted with respect to HOME funds being competitively reallocated
under subpart J of this part to units of general local government.
Subpart I--Technical Assistance
Sec. 92.400 Coordinated Federal support for housing strategies.
(a) General. HUD will provide assistance in accordance with
Subtitle C of the Act.
(b) Notice of funding. HUD will publish a notice in the Federal
Register announcing the availability of funding under this section as
appropriate.
Subpart J--Reallocations
Sec. 92.450 General.
(a) This subpart J sets out the conditions under which HUD
reallocates HOME funds that have been allocated, reserved, or placed in
a HOME Investment Trust Fund.
(b) A jurisdiction that is not a participating jurisdiction but is
meeting the requirements of Secs. 92.102, 92.103, and 92.104,
(participation threshold, notice of intent, and submission of
consolidated plan) is treated as a participating jurisdiction for
purposes of receiving a reallocation under subpart J of this part.
Sec. 92.451 Reallocation of HOME funds from a jurisdiction that is not
designated a participating jurisdiction or has its designation revoked.
(a) Failure to be designated a participating jurisdiction. HUD will
reallocate, under this section, any HOME funds allocated to or reserved
for a jurisdiction that is not a participating jurisdiction if:
(1) HUD determines that the jurisdiction has failed to:
(i) Meet the participation threshold amount in Sec. 92.102;
(ii) Provide notice of its intent to become a participating
jurisdiction in accordance with Sec. 92.103; or
(iii) Submit its consolidated plan, in accordance with 24 CFR part
91; or
(2) HUD after providing for amendments and resubmissions in
accordance with 24 CFR part 91 disapproves the jurisdiction's
consolidated plan.
(b) Designation revoked. HUD will reallocate, under this section,
any funds remaining in a jurisdiction's HOME Investment Trust Fund
after HUD has revoked the jurisdiction's designation as a participating
jurisdiction under Sec. 92.107.
(c) Manner of reallocation. HUD will reallocate funds that are
subject to reallocation under this section in the following manner:
(1) If the funds to be reallocated under this section are from a
State, HUD will:
(i) Make the funds available by competition in accordance with
criteria in Sec. 92.453 among applications submitted by units of
general local government within the State and with preference being
given to applications from units of general local government that are
not participating jurisdictions, and
(ii) Reallocate the remainder by formula in accordance with
Sec. 92.454.
(2) If the funds to be reallocated are from a unit of general local
government:
(i) Located in a State that is participating jurisdiction, HUD will
reallocate the funds to that State. The State, in distributing these
funds, must give preference to the provision of affordable housing
within the unit of general local government; or
(ii) Located in a State that is not a participating jurisdiction,
HUD will reallocate the funds by competition among units of general
local government and community housing development organizations within
the State, with priority going to applications for affordable housing
within the unit of general local government; and reallocate the
remainder by formula in accordance with Sec. 92.454.
Sec. 92.452 Reallocation of community housing development organization
set-aside.
HUD will reallocate, under this section, any HOME funds reduced or
recaptured by HUD from a participating jurisdiction's HOME Investment
Trust Fund under Sec. 92.300(d). HUD will reallocate these funds by
competition in accordance with criteria in Sec. 92.453 to other
participating jurisdictions for affordable housing developed,
sponsored, or owned by community housing development organizations.
Sec. 92.453 Criteria for competitive reallocations.
(a) General. HUD will invite applications through Federal Register
notice for HOME funds that become available for competitive
reallocation under Sec. 92.451 or Sec. 92.452, or both. The notice will
describe the application requirements and procedures, including the
deadline for the submission of applications of at least 30 days, the
total funding available for the competition and any maximum amount of
individual awards. The notice will describe the selection criteria and
any special factors to be evaluated in awarding points
[[Page 48778]]
under the selection criteria. The selection criteria are those set
forth in this section and any additional requirements in Secs. 92.451
and 92.452. The notice will also state whether HUD will make selections
based on the application for a project or activities.
(b) Threshold factors. To be considered for a competitive
reallocation, an application submitted by a jurisdiction must
demonstrate to the satisfaction of HUD that:
(1) Cooperative efforts. The jurisdiction is engaged, or has made
good faith efforts to engage, in cooperative efforts between the State
and appropriate participating jurisdictions within the State to
develop, coordinate, and implement housing strategies under the Act;
and
(2) Barrier removal. (i) The jurisdiction is implementing, or has
plans to implement, a strategy to remove or ameliorate negative effects
of public policies which raise the cost of housing or constrain
incentives to develop, maintain, or improve affordable housing; or
demonstrate the absence of these policies.
(ii) A local jurisdiction must provide a satisfactory explanation
(based on its approved consolidated plan, or based on the State's
approved consolidated plan, if the jurisdiction is not required to
submit a consolidated plan) of whether the cost of housing or the
incentives to develop, maintain, or improve affordable housing in the
jurisdiction are affected by State and local policies, statutes,
ordinances, regulations, and administrative procedures and processes.
Of particular concern are policies such as tax policies affecting land
and other property, land use controls, zoning ordinances, building
codes, fees and charges, growth limits, and policies that affect the
return on residential investment. The jurisdiction must also provide a
satisfactory description of its strategy to remove or ameliorate
negative effects, if any, of such policies.
(iii) A State must provide a satisfactory explanation of whether
the cost of housing or the incentives to develop, maintain, or improve
affordable housing in the State are affected by State, as well as local
policies, statutes, ordinances, regulations, and administrative
procedures and processes. Of particular concern are policies such as
tax policies affecting land and other property, land use controls,
zoning ordinances, building codes, fees and charges, growth limits, and
policies that affect the return on residential investment. A State must
also provide a satisfactory description of its strategy to remove or
ameliorate directly any negative effects, as well as to work with units
of general local government involved to remove or ameliorate such
negative effects of such policies. The strategy should propose, as
appropriate, a program of State enabling reforms, direct State action
as well as model codes, standards, and technical assistance for local
governments.
(c) Evaluation criteria. Each applicant jurisdiction meeting the
threshold factors in paragraph (b) of this section and each applicant
that is not a jurisdiction will be evaluated and ranked in accordance
with criteria contained in the notice that are consistent with the
following factors and take into account selection preferences and other
requirements in Sec. 92.450 through Sec. 92.452 that may apply, based
on the source of the HOME funds being competitively reallocated.
(1) Policies (25 Points). The degree to which the applicant is
pursuing policies that:
(i) Make existing housing more affordable;
(ii) Preserve the affordability of privately owned housing that is
vulnerable to conversion, demolition, disinvestment, or abandonment;
(iii) Increase the supply of housing that is affordable to very
low-income and low-income persons, particularly in areas that are
accessible to expanding job opportunities; and,
(iv) Remedy the effects of discrimination and improve the housing
opportunities for disadvantaged minorities.
(2) Actions (50 points). The applicant's actions that:
(i) Direct HOME funds to benefit very low-income families, to a
greater extent than required by Sec. 92.252(b). Extra consideration
will be given for activities that expand the supply of affordable
housing for very low-income families whose annual incomes do not exceed
30 percent of the median family income for the area;
(ii) Apply the tenant selection preference categories applicable
under section 8 of the 1937 Act to the selection of tenants for housing
assisted with HOME funds;
(iii) Provide matching resources in excess of funds required under
Sec. 92.218; and
(iv) Stimulate a high degree of investment and participation by the
private sector, including nonprofit organizations.
(3) Commitment (25 points). The applicant's demonstrated commitment
to expand the supply of affordable rental housing, including units
developed by public housing agencies, as indicated by the additional
number of units of affordable housing made available through new
construction or rehabilitation within the previous two years, making
adjustments for regional variations in construction and rehabilitation
costs and giving special consideration to the number of additional
units made available under this part through new construction or
rehabilitation, including units developed by public housing agencies,
in relation to the amounts made available under this program.
Sec. 92.454 Reallocations by formula.
(a) HUD will reallocate under this section:
(1) Any HOME funds remaining available for reallocation after HUD
has made competitive reallocations under Sec. 92.451 and Sec. 92.452;
(2) Any HOME funds available for reallocation because HUD reduced
or recaptured funds from participating jurisdiction under
Sec. 92.500(d) for failure to commit the funds within the time
specified;
(3) Any HOME funds withdrawn by HUD from a participating
jurisdiction under 24 CFR 91.520(f) for failure to submit in a timely
manner a performance report required by 24 CFR 91.520 that is
satisfactory to HUD; and
(4) Any HOME funds remitted to HUD under Sec. 92.503(b) when a
jurisdiction ceases to be a participating jurisdiction.
(b) Any reallocation of funds from a State must be made only among
all participating States, and any reallocation of funds from units of
general local government must be made only among all participating
units of general local government, except those participating
jurisdictions that HUD has removed from participating in reallocations
under Sec. 92.552.
(c) A local participating jurisdiction's share of a reallocation is
calculated by multiplying the amount available for reallocation to
units of general local government by a factor that is that ratio of the
participating jurisdiction's formula allocation provided under
Sec. 92.50 to the total of the formula allocations provided for all
local participating jurisdictions sharing in the reallocation. A State
participating jurisdiction's share is comparably determined using the
amount available for reallocation to States.
(d) HUD will make reallocations under this section quarterly,
unless the amount available for such reallocation is insufficient to
warrant making a reallocation. In any event, HUD will make a
reallocation under this section at least once a year. The minimum
amount of a reallocation is $1000.
[[Page 48779]]
Subpart K--Program Administration
Sec. 92.500 The HOME Investment Trust Fund.
(a) General. A HOME Investment Trust Fund consists of the accounts
described in this section solely for investment in accordance with the
provisions of this part. HUD will establish a HOME Investment Trust
Fund United States Treasury account for each participating
jurisdiction. Each participating jurisdiction may use either a separate
local HOME Investment Trust Fund account or, a subsidiary account
within its general fund (or other appropriate fund) as the local HOME
Investment Trust Fund account.
(b) Treasury Account. The United States Treasury account of the
HOME Investment Trust Fund includes funds allocated to the
participating jurisdiction under Sec. 92.50 (including for a local
participating jurisdiction, any transfer of the State's allocation
pursuant to Sec. 92.102(b)(2)) and funds reallocated to the
participating jurisdiction, either by formula or by competition, under
subpart J of this part; and
(c) Local Account. (1) The local account of the HOME Investment
Trust Fund includes deposits of HOME funds disbursed from the Treasury
account; the deposit of any State funds (other than HOME funds
transferred pursuant to Sec. 92.102(b)(2)) or local funds that enable
the jurisdiction to meet the participating threshold amount in
Sec. 92.102; any program income (from both the allocated funds and
matching contributions in accordance with the definition of program
income); and any repayments or recaptured funds as required by
Sec. 92.503.
(2) The participating jurisdiction may establish a second local
account of the HOME Investment Trust Funds if:
(i) The participating jurisdiction has its own affordable housing
trust fund that the participating jurisdiction will use for matching
contributions to the HOME program;
(ii) The statute or local ordinance requires repayments from its
own trust fund to be made to the trust fund;
(iii) The participating jurisdiction establishes a separate account
within its own trust fund for repayments of the matching contributions;
and
(iv) The funds in the account are used solely for investment in
eligible activities within the participating jurisdiction's boundaries
in accordance with the provisions of this part, except as provided
under Sec. 92.201(a)(2).
(3) The funds in the local account cannot be used for the matching
contribution and do not need to be matched.
(d) Reductions. HUD will reduce or recapture HOME funds in the HOME
Investment Trust Fund by the amount of:
(1) Any funds in the United States Treasury account that are
required to be reserved (i.e., 15 percent of the funds) by a
participating jurisdiction under Sec. 92.300 that are not reserved for
a community housing development organization pursuant to a written
agreement within 24 months after the last day of the month in which HUD
notifies the participating jurisdiction of HUD's execution of the HOME
Investment Partnership Agreement (HUD will make the notification on the
date HUD executes the agreement);
(2) Any funds in the United States Treasury account that are not
committed within 24 months after the last day of the month in which HUD
notifies the participating jurisdiction of HUD's execution of the HOME
Investment Partnership Agreement (HUD will make the notification on the
date HUD executes the agreement);
(3) Any funds in the United States Treasury account that are not
expended within five years after the last day of the month in which HUD
notifies the participating jurisdiction of HUD's execution of the HOME
Investment Partnership Agreement (HUD will make the notification on the
date HUD executes the agreement); and
(4) Any penalties assessed by HUD under Sec. 92.552.
Sec. 92.501 HOME Investment Partnership Agreement.
Allocated and reallocated funds will be made available pursuant to
a HOME Investment Partnership Agreement. The agreement ensures that
HOME funds invested in affordable housing are repayable if the housing
ceases to qualify as affordable housing before the period of
affordability expires.
Sec. 92.502 Program disbursement and information system.
(a) General. The Home Investment Trust Fund account established in
the United States Treasury is managed through a computerized
disbursement and information system established by HUD. The system
disburses HOME funds that are allocated or reallocated, and collects
and reports information on the use of HOME funds in the United States
Treasury account. [For purposes of reporting in the Integrated
Disbursement and Information System, a HOME project is an activity.]
(b) Project set-up. (1) After the participating jurisdiction
executes the HOME Investment Partnership Agreement, submits the
applicable banking and security documents, complies with the
environmental requirements under 24 CFR part 58 for release of funds
and commits funds to a specific local project, the participating
jurisdiction may identify (set up) specific investments in the
disbursement and information system. Investments that require the set-
up of projects in the system are the acquisition, new construction, or
rehabilitation of housing, and the provision of tenant-based rental
assistance. The participating jurisdiction is required to enter
complete project set-up information at the time of project set-up.
(2) If the project set-up information is not completed within 20
days of the project set-up call, the project may be cancelled by the
system. In addition, a project which has been committed in the system
for 12 months without an initial disbursement of funds may be cancelled
by the system.
(c) Disbursement of HOME funds. (1) After complete project set-up
information is entered into the disbursement and information system,
HOME funds for the project may be drawn down from the United States
Treasury account by the participating jurisdiction by electronic funds
transfer. The funds will be deposited in the local account of the HOME
Investment Trust Fund of the participating jurisdiction within 48 to 72
hours of the disbursement request. Any drawdown of HOME funds from the
United States Treasury account is conditioned upon the provision of
satisfactory information by the participating jurisdiction about the
project or tenant-based rental assistance and compliance with other
procedures, as specified by HUD.
(2) HOME funds drawn from the United States Treasury account must
be expended for eligible costs within 15 days. Any interest earned
within the 15 day period may be retained by the participating
jurisdiction as HOME funds. Any funds that are drawn down and not
expended for eligible costs within 15 days of the disbursement must be
returned to HUD for deposit in the participating jurisdiction's United
States Treasury account of the HOME Investment Trust Fund. Interest
earned after 15 days belongs to the United States and must be remitted
promptly, but at least quarterly, to HUD, except that a local
participating jurisdiction may retain interest amounts up to $100 per
year for administrative expenses and States are subject to the
Intergovernmental Cooperation Act (31 U.S.C. 6501 et seq.).
[[Page 48780]]
(3) HOME funds in the local account of the HOME Investment Trust
Fund must be disbursed before requests are made for HOME funds in the
United States Treasury account.
(4) A participating jurisdiction will be paid on an advance basis
provided it complies with the requirements of this part.
(d) Project completion.
(1) Complete project completion information must be entered into
the disbursement and information system, or otherwise provided, within
120 days of the final project drawdown. If satisfactory project
completion information is not provided, HUD may suspend further project
set-ups or take other corrective actions.
(2) Additional HOME funds may be committed to a project up to one
year after project completion, but the amount of HOME funds in the
project may not exceed the maximum per-unit subsidy amount established
under Sec. 92.250.
(e) Access by other participants. Access to the disbursement and
information system by other entities participating in the HOME program
(e.g., State recipients) will be governed by procedures established by
HUD.
Sec. 92.503 Program income, repayments, and recaptured funds.
(a) Program income. (1) Program income must be used in accordance
with the requirements of this part. Program income must be deposited in
the participating jurisdiction's HOME Investment Trust Fund local
account unless the participating jurisdiction permits the State
recipient or subrecipient to retain the program income for additional
HOME projects pursuant to the written agreement required by
Sec. 92.504.
(2) If the jurisdiction is not a participating jurisdiction when
the program income is received, the funds are not subject to the
requirements of this part.
(3) Program income derived from consortium activities undertaken by
or within a member unit of general local government which thereafter
terminates its participation in the consortium continues to be program
income of the consortium.
(b) Repayments. (1) Any HOME funds invested in housing that does
not meet the affordability requirements for the period specified in
Sec. 92.252 or Sec. 92.254, as applicable, must be repaid by the
participating jurisdiction in accordance with paragraph (b)(3) of this
section.
(2) Any HOME funds invested in a project that is terminated before
completion, either voluntarily or otherwise, must be repaid by the
participating jurisdiction in accordance with paragraph (b)(3) of this
section except for repayments of project specific community housing
development organization loans which are waived in accordance with
Secs. 92.301(a)(3) and 92.301(b)(3).
(3) If the HOME funds were disbursed from the participating
jurisdiction's HOME Investment Trust Fund Treasury account, they must
be repaid to the Treasury account. If the HOME funds were disbursed
from the participating jurisdiction's HOME Investment Trust Fund local
account, they must be repaid to the local account. If the jurisdiction
is not a participating jurisdiction when the repayment is made, the
funds must be remitted to HUD and reallocated in accordance with
Sec. 92.454.
(c) Recaptures. HOME funds recaptured in accordance with
Sec. 92.254(a)(5)(ii) must be used in accordance with the requirements
of this part. Recaptured funds must be deposited in the participating
jurisdiction's HOME Investment Trust Fund local account unless the
participating jurisdiction permits the State recipient, subrecipient,
or community housing development organization to retain the recaptured
funds for additional HOME projects pursuant to the written agreement
required by Sec. 92.504. If the jurisdiction is not a participating
jurisdiction when the recaptured funds are received, the funds must be
remitted to HUD and reallocated in accordance with Sec. 92.454.
Sec. 92.504 Participating jurisdiction responsibilities; written
agreements; on-site inspection.
(a) Responsibilities. The participating jurisdiction is responsible
for managing the day to day operations of its HOME program, ensuring
that HOME funds are used in accordance with all program requirements
and written agreements, and taking appropriate action when performance
problems arise. The use of State recipients, subrecipients, or
contractors does not relieve the participating jurisdiction of this
responsibility. The performance of each contractor and subrecipient
must be reviewed at least annually.
(b) Executing a written agreement. Before disbursing any HOME funds
to any entity, the participating jurisdiction must enter into a written
agreement with that entity. Before disbursing any HOME funds to any
entity, a State recipient, subrecipient, or contractor which is
administering all or a part of the HOME program on behalf of the
participating jurisdiction, must also enter into a written agreement
with that entity. The written agreement must ensure compliance with the
requirements of this part.
(c) Provisions in written agreements. The contents of the agreement
may vary depending upon the role the entity is asked to assume or the
type of project undertaken. This section details basic requirements by
role and the minimum provisions that must be included in a written
agreement.
(1) State recipient. The provisions in the written agreement
between the State and a State recipient will depend on the program
functions that the State specifies the State recipient will carry out
in accordance with Sec. 92.201(b).
(i) Use of the HOME funds. The agreement must describe the use of
the HOME funds, including the tasks to be performed, a schedule for
completing the tasks, and a budget. These items must be in sufficient
detail to provide a sound basis for the State to effectively monitor
performance under the agreement.
(ii) Affordability. The agreement must require housing assisted
with HOME funds to meet the affordability requirements of Sec. 92.252
or Sec. 92.254, as applicable, and must require repayment of the funds
if the housing does not meet the affordability requirements for the
specified time period.
(iii) Program income. The agreement must state if program income is
to be remitted to the State or to be retained by the State recipient
for additional eligible activities.
(iv) Uniform administrative requirements. The agreement must
require the State recipient to comply with applicable uniform
administrative requirements, as described in Sec. 92.505.
(v) Project requirement. The agreement must require compliance with
project requirements in subpart F of this part, as applicable in
accordance with the type of project assisted.
(vi) Other program requirements. The agreement must require the
State recipient to carry out each activity in compliance with all
Federal laws and regulations described in subpart H of this part,
except that the State recipient does not assume the State's
responsibilities for release of funds under Sec. 92.352 and the
intergovernmental review process in Sec. 92.357 does not apply to the
State recipient.
(vii) Affirmative marketing. The agreement must specify the State
recipient's affirmative marketing responsibilities in accordance with
Sec. 92.351, if the HOME funds received by the State recipient will be
used for housing containing five or more assisted units.
[[Page 48781]]
(viii) Requests for disbursement of funds. The agreement must
specify that the State recipient may not request disbursement of HOME
funds under this agreement until the funds are needed for payment of
eligible costs. The amount of each request must be limited to the
amount needed. Program income must be disbursed before the State
recipient requests funds from the State.
(ix) Records and reports. The agreement must specify the particular
records that must be maintained and the information or reports that
must be submitted in order to assist the State in meeting its
recordkeeping and reporting requirements.
(x) Enforcement of the agreement. The agreement must provide for a
means of enforcement of affordable housing requirements by the State or
the intended beneficiaries, if the State recipient will be the owner at
project completion of the affordable housing. The means of enforcement
may include liens on real property, deed restrictions, or covenants
running with the land. The affordability requirements in Sec. 92.252
must be enforced by deed restriction. In addition, the agreement must
specify remedies for breach of the HOME requirements. The agreement
must specify that, in accordance with 24 CFR 85.43, suspension or
termination may occur if the State recipient materially fails to comply
with any term of the agreement. The State may permit the agreement to
be terminated for convenience in accordance with 24 CFR 85.44.
(xi) If the State recipient provides funds to for-profit owners or
developers, nonprofit owners or developers, subrecipients, homeowners,
homebuyers, tenants receiving tenant-based rental assistance, or
contractors who are providing services to the State recipient, the
State recipient must have a written agreement with such entities which
meets the requirements of this section.
(xii) Duration of the agreement. The duration of the agreement will
depend on which functions the State recipient performs (e.g., whether
the State recipient or the State has responsibility for monitoring
rental projects for the period of affordability) and which activities
are funded under the agreement.
(2) Subrecipient. A subrecipient is a public agency or nonprofit
selected by the participating jurisdiction to administer all or a
portion of the participating jurisdiction's HOME Program. The agreement
between the participating jurisdiction and the subrecipient must
include:
(i) Use of the HOME funds. The agreement must describe the use of
the HOME funds, including the tasks to be performed, a schedule for
completing the tasks, a budget, and the period of the agreement. These
items must be in sufficient detail to provide a sound basis for the
participating jurisdiction effectively to monitor performance under the
agreement.
(ii) Program income. The agreement must state if program income is
to be remitted to the participating jurisdiction or to be retained by
the subrecipient for additional eligible activities.
(iii) Uniform administrative requirements. The agreement must
require the subrecipient to comply with applicable uniform
administrative requirements, as described in Sec. 92.505.
(iv) Other program requirements. The agreement must require the
subrecipient to carry out each activity in compliance with all Federal
laws and regulations described in subpart H of this part, except that
the subrecipient does not assume the participating jurisdiction's
responsibilities for environmental review under Sec. 92.352 and the
intergovernmental review process in Sec. 92.357 does not apply.
(v) Affirmative marketing. The agreement must specify the
subrecipient's affirmative marketing responsibilities in accordance
with Sec. 92.351, if the HOME funds administered by the subrecipient
will be used for housing containing five or more assisted units.
(vi) Requests for disbursement of funds. The agreement must specify
that the subrecipient may not request disbursement of funds under the
agreement until the funds are needed for payment of eligible costs. The
amount of each request must be limited to the amount needed. Program
income must be disbursed before the subrecipient requests funds from
the participating jurisdiction.
(vii) Reversion of assets. The agreement must specify that upon
expiration of the agreement, the subrecipient must transfer to the
participating jurisdiction any HOME funds on hand at the time of
expiration and any accounts receivable attributable to the use of HOME
funds.
(viii) Records and reports. The agreement must specify the
particular records that must be maintained and the information or
reports that must be submitted in order to assist the participating
jurisdiction in meeting its recordkeeping and reporting requirements.
(ix) Enforcement of the agreement. The agreement must specify
remedies for breach of the provisions of the agreement. The agreement
must specify that, in accordance with 24 CFR 85.43, suspension or
termination may occur if the subrecipient materially fails to comply
with any term of the agreement. The participating jurisdiction may
permit the agreement to be terminated for convenience in accordance
with 24 CFR 85.44.
(x) If the subrecipient provides HOME funds to for-profit owners or
developers, nonprofit owners or developers, subrecipients, homeowners,
homebuyers, tenants receiving tenant-based rental assistance, or
contractors, the subrecipient must have a written agreement which meets
the requirements of this section.
(3) For-profit or nonprofit housing owner, sponsor or developer
(other than single-family owner-occupant).
(i) Use of the HOME funds. The agreement between the participating
jurisdiction and a for-profit or non-profit housing owner, sponsor or
developer must describe the use of the HOME funds, including the tasks
to be performed, a schedule for completing the tasks, and a budget.
These items must be in sufficient detail to provide a sound basis for
the participating jurisdiction to effectively monitor performance under
the agreement.
(ii) Affordability. The agreement must require housing assisted
with HOME funds to meet the affordability requirements of Sec. 92.252
or Sec. 92.254, as applicable, and must require repayment of the funds
if the housing does not meet the affordability requirements for the
specified time period. If the owner or developer is undertaking rental
projects, the agreement must establish the initial rents and the
procedures for rent increases. If the owner or developer is undertaking
homeownership projects for sale to homebuyers in accordance with
Sec. 92.254(a), the agreement must set forth the resale or recapture
requirements which must be imposed on the housing.
(iii) Project requirements. The agreement must require compliance
with project requirements in subpart F of this part, as applicable in
accordance with the type of project assisted.
(iv) Property standards. The agreement must require the housing to
meet the property standards in Sec. 92.251 and the lead-based paint
requirements in Sec. 92.355 upon project completion. The agreement must
also require owners of rental housing assisted with HOME funds to
maintain the housing in compliance with Sec. 92.251 for the duration of
the affordability period.
(v) Affirmative marketing. If the project contains 5 or more HOME-
assisted units, the agreement must
[[Page 48782]]
specify the owner or developer's affirmative marketing responsibilities
as enumerated by the participating jurisdiction in accordance with
Sec. 92.351.
(vi) Records and reports. The agreement must specify the particular
records that must be maintained and the information or reports that
must be submitted in order to assist the participating jurisdiction in
meeting its recordkeeping and reporting requirements.
(vii) Enforcement of the agreement. The agreement must provide for
a means of enforcement of the affordable housing requirements by the
participating jurisdiction or the intended beneficiaries. This means of
enforcement may include liens on real property, deed restrictions or
covenants running with the land. The affordability requirements in
Sec. 92.252 must be enforced by deed restriction. In addition, the
agreement must specify remedies for breach of the provisions of the
agreement.
(viii) Requests for disbursement of funds. The agreement must
specify that the developer may not request disbursement of funds under
the agreement until the funds are needed for payment of eligible costs.
The amount of each request must be limited to the amount needed.
(ix) Duration of the agreement. The agreement must specify the
duration of the agreement. If the housing assisted under this agreement
is rental housing, the agreement must be in effect through the
affordability period required by the participating jurisdiction under
Sec. 92.252. If the housing assisted under this agreement is
homeownership housing, the agreement must be in effect at least until
completion of the project and ownership by the low-income family.
(x) Conditions for religious organizations. Where applicable, the
agreement must include the conditions prescribed in Sec. 92.257 for the
use of HOME funds by religious organizations.
(xi) Community housing development organization provisions. If the
nonprofit owner or developer is a community housing development
organization and is using set-aside funds under Sec. 92.300, the
agreement must include the appropriate provisions under Secs. 92.300
and 92.301.
(4) Contractor. The participating jurisdiction selects a contractor
through applicable procurement procedures and requirements. The
contractor provides goods or services in accordance with a written
agreement (the contract). For contractors who are administering all or
a portion of the HOME program, the contract must include at a minimum
the following provisions:
(i) Use of the HOME funds. The agreement must describe the use of
the HOME funds, including the tasks to be performed, a schedule for
completing the tasks, a budget, and the length of the agreement.
(ii) Program requirements. The agreement must provide that the
contractor is subject to the requirements in Part 92 that are
applicable to the participating jurisdiction, except Secs. 92.505 and
92.506 do not apply, and the contractor cannot assume the participating
jurisdiction responsibilities for environmental review, decisionmaking,
and action under Sec. 92.352. Where the contractor is administering
only a portion of the program, the agreement must list the requirements
applicable to the activities the contractor is administering.
(iii) Duration of agreement. The agreement must specify the
duration of the contract. Generally, the duration of a contract should
not exceed two years.
(5) Homebuyer, homeowner or tenant receiving tenant-based rental or
security deposit assistance. When a participating jurisdiction provides
assistance to a homebuyer, homeowner or tenant the written agreement
may take many forms depending upon the nature of assistance. As
appropriate, it must include as a minimum:
(i) For homebuyers, the agreement must conform to the requirements
in Sec. 92.254(a), the value of the property, principal residence,
lease-purchase, if applicable, and the resale or recapture provisions.
The agreement must specify the amount of HOME funds, the form of
assistance, e.g., grant, amortizing loan, deferred payment loan, the
use of the funds (e.g., down-payment, closing costs, rehabilitation)
and the time by which the housing must be acquired.
(ii) For homeowners, the agreement must conform to the requirements
in Sec. 92.254(b) and specify the amount and form of HOME assistance,
rehabilitation work to be undertaken, date for completion, and property
standards to be met.
(iii) For tenants, the rental assistance contract or the security
deposit contract must conform to Secs. 92.209 and 92.253.
(d) On site inspections--(1) HOME assisted rental housing. During
the period of affordability, the participating jurisdiction must
perform on-site inspections of HOME-assisted rental housing to
determine compliance with the property standards of Sec. 92.251 and to
verify the information submitted by the owners in accordance with the
requirements of Sec. 92.252 no less than: every three years for
projects containing 1 to 4 units; every two years for projects
containing 5 to 25 units; and every year for projects containing 26 or
more units. Inspections must be based on a sufficient sample of units.
(2) Tenant-based rental assistance. The participating jurisdiction
must perform annual on-site inspections of rental housing occupied by
tenants receiving HOME-assisted TBRA to determine compliance with the
property standards of Sec. 92.251.
Sec. 92.505 Applicability of uniform administrative requirements.
(a) Governmental entities. The requirements of OMB Circular No. A-
87 and the following requirements of 24 CFR part 85 apply to the
participating jurisdiction, State recipients, and any governmental
subrecipient receiving HOME funds: Secs. 85.6, 85.12, 85.20, 85.22,
85.26, 85.32 through 85.34, 85.36, 85.44, 85.51, and 85.52.
(b) Non-profit organizations. The requirements of OMB Circular No.
A-122 and the following requirements of 24 CFR part 84 apply to
subrecipients receiving HOME funds that are nonprofit organizations
that are not governmental subrecipients: Secs. 84.2, 84.5, 84.13
through 84.16, 84.21, 84.22, 84.26 through 84.28, 84.30, 84.31, 84.34
through 84.37, 84.40 through 84.48, 84.51, 84.60 through 84.62, 84.72,
and 84.73.
Sec. 92.506 Audit.
Audits of the participating jurisdiction, State recipients, and
subrecipients must be conducted in accordance with 24 CFR parts 44 and
45, as applicable.
Sec. 92.507 Closeout.
(a) HOME funds from each individual Federal fiscal year (i.e., the
allocation and any reallocated funds from the particular federal fiscal
year appropriation) will be closed out when all the following criteria
have been met:
(1) All funds to be closed out have been drawn down and expended
for completed project costs, or funds not drawn down and expended have
been deobligated by HUD;
(2) The matching requirements in Sec. 92.218 have been met;
(3) Project Completion Reports for all projects using funds to be
closed out have been submitted and project completion information has
been entered into the program disbursement and information system
established by HUD;
(4) The participating jurisdiction has been reviewed and audited
and HUD has determined that all requirements, except for affordability,
have been met
[[Page 48783]]
or all monitoring and audit findings have been resolved.
(i) The participating jurisdiction's most recent audit report and
audit reports of state recipients, where applicable, must be received
by HUD. If the audit does not cover all funds to be closed out, the
closeout may proceed, provided the participating jurisdiction agrees in
the Closeout Report that any costs paid with the funds that were not
audited must be subject to the participating jurisdiction's next single
audit and that the participating jurisdiction may be required to repay
to HUD any disallowed costs based on the results of the audit.
(ii) The on-site monitoring of the participating jurisdiction by
the HUD Field Office must include verification of data reflected in the
Closeout Report and reconciliation of any discrepancies which may exist
between program disbursement and information system data and
participating jurisdiction or state recipient records.
(b) The Closeout Report contains the final data on the funds and
must be signed by the participating jurisdiction and HUD. In addition,
the report must contain:
(1) A provision regarding unaudited funds, required by paragraph
(a)(4)(i) of this section; and
(2) A provision requiring the participating jurisdiction to
continue to meet the requirements applicable to housing projects for
the period of affordability specified in Sec. 92.252 or Sec. 92.254, to
keep records demonstrating that the requirements have been met and to
repay the HOME funds, as required by Sec. 92.503, if the housing fails
to remain affordable for the required period.
Sec. 92.508 Recordkeeping.
(a) General. Each participating jurisdiction must establish and
maintain sufficient records to enable HUD to determine whether the
participating jurisdiction has met the requirements of this part. At a
minimum, the following records are needed:
(1) Records concerning designation as a participating jurisdiction.
(i) For a consortium, the consortium agreement among the
participating member units of general local government as required by
Sec. 92.101.
(ii) For a unit of general local government receiving a formula
allocation of less than $750,000 (or less than $500,000 in fiscal years
in which Congress appropriates less than $1.5 billion for this part),
records demonstrating that funds have been made available (either by
the State or the unit of general local government, or both) equal to or
greater than the difference between its formula allocation and $750,000
(or $500,000 in fiscal years in which Congress appropriates less than
$1.5 billion) as required by Sec. 92.102(b).
(2) Program records. (i) Records of the efforts to maximize
participation by the private sector as required by Sec. 92.200.
(ii) The forms of HOME assistance used in the program, including
any forms of investment described in the Consolidated Plan under 24 CFR
part 91 which are not identified in Sec. 92.205(b).
(iii) The subsidy layering guidelines adopted in accordance with
Sec. 92.250 which support the participating jurisdiction's Consolidated
Plan certification.
(iv) If existing debt is refinanced for multi-family rehabilitation
projects, the refinancing guidelines established in accordance with
Sec. 92.206(b), described in the Consolidated Plan.
(v) If HOME funds are used for tenant-based rental assistance,
records supporting the participating jurisdiction's Consolidated Plan
certification in accordance with Sec. 92.209(b), including
documentation of the local market conditions that led to the choice of
this option; written selection policies and criteria; supporting
documentation for preferences for specific categories of individuals
with disabilities; and records supporting the rent standard and minimum
tenant contribution established in accordance with Sec. 92.209(h).
(vi) If HOME funds are used for tenant-based rental assistance or
rental housing, records evidencing that not less than 90 percent of the
families receiving such rental assistance meet the income requirements
of Sec. 92.216.
(vii) If HOME funds are used for homeownership housing, the
procedures used for establishing 95 percent of the median purchase
price for the area in accordance with Sec. 92.254(a)(2), in the
Consolidated Plan.
(viii) If HOME funds are used for acquisition of housing for
homeownership, the resale or recapture guidelines established in
accordance with Sec. 92.254(a)(5), in the Consolidated Plan.
(ix) Records demonstrating compliance with the matching
requirements of Sec. 92.218 through Sec. 92.222 including a running log
and project records documenting the type and amount of match
contributions by project.
(x) Records documenting compliance with the 24 month commitment
deadline of Sec. 92.500(d).
(xi) Records demonstrating compliance with the fifteen percent CHDO
set-aside requirement of Sec. 92.300(a).
(xii) Records documenting compliance with the ten percent
limitation on administrative and planning costs in accordance with
Sec. 92.207.
(3) Project records. (i) A full description of each project
assisted with HOME funds, including the location, form of HOME
assistance, and the units or tenants assisted with HOME funds.
(ii) The source and application of funds for each project,
including supporting documentation in accordance with 24 CFR 85.20.
(iii) Records demonstrating that each rental housing or
homeownership project meets the minimum per-unit subsidy amount of
Sec. 92.205(c), the maximum per-unit subsidy amount of Sec. 92.250(a)
and the subsidy layering guidelines adopted in accordance with
Sec. 92.250(b).
(iv) Records demonstrating that each project meets the property
standards of Sec. 92.251 and the lead based paint requirements of
Sec. 92.355.
(v) Records demonstrating that each family is income eligible in
accordance with Sec. 92.203.
(vi) Records demonstrating that each tenant-based rental assistance
project meets the written tenant selection policies and criteria of
Sec. 92.209(c), including the tenant preference requirements, the rent
reasonableness requirements of Sec. 92.209(f), the maximum subsidy
provisions of Sec. 92.209(h), HQS inspection reports, and calculation
of the HOME subsidy.
(vii) Records demonstrating that each rental housing project meets
the affordability and income targeting requirements of Sec. 92.252 for
the required period. Records must be kept for each family assisted.
(viii) Records demonstrating that each multifamily rental housing
project involving rehabilitation with refinancing complies with the
refinancing guidelines established in accordance with Sec. 92.206(b).
(ix) Records demonstrating that each lease for a tenant receiving
tenant-based rental assistance and for an assisted rental housing unit
complies with the tenant and participant protections of Sec. 92.253.
Records must be kept for each family.
(x) Records demonstrating that the purchase price or estimated
value after rehabilitation for each homeownership housing project does
not exceed 95 percent of the median purchase price for the area in
accordance with Sec. 92.254(a)(2). The records must
[[Page 48784]]
demonstrate how the estimated value was determined.
(xi) Records demonstrating that each homeownership project meets
the affordability requirements of Sec. 92.254 for the required period.
(xii) Records demonstrating that any pre-award costs charged to the
HOME allocation meet the requirements of Sec. 92.212.
(4) Community Housing Development Organizations (CHDOs) Records.
(i) Written agreements reserving HOME funds to CHDOs in accordance with
Sec. 92.300(a).
(ii) Records setting forth the efforts made to identify and
encourage CHDOs, as required by Sec. 92.300(b).
(iii) The name and qualifications of each CHDO and amount of HOME
CHDO set-aside funds reserved and committed.
(iv) Records demonstrating that each CHDO complies with the written
agreements required by Sec. 92.504.
(v) Records concerning the use of CHDO setaside funds, including
funds used to develop CHDO capacity pursuant to Sec. 92.300(b).
(vi) Records concerning the use of funds for CHDO operating
expenses and demonstrating compliance with the requirements of
Sec. 92.208, Sec. 92.300(e) and Sec. 92.300(f).
(vii) Records concerning the tenant participation plan required by
Sec. 92.303.
(viii) Records concerning project-specific assistance to CHDOs
pursuant to Sec. 92.301, including the impediments to repayment, if
repayment is waived.
(5) Financial records. (i) Records identifying the source and
application of funds for each fiscal year, including the formula
allocation, any reallocation (identified by federal fiscal year
appropriation), and any State or local funds provided under
Sec. 92.102(b).
(ii) Records concerning the HOME Investment Trust Fund Treasury
account and local account required to be established and maintained by
Sec. 92.500, including deposits, disbursements, balances, supporting
documentation and any other information required by the program
disbursement and information system established by HUD.
(iii) Records identifying the source and application of program
income, repayments and recaptured funds.
(iv) Records demonstrating adequate budget control, in accordance
with 24 CFR 85.20, including evidence of periodic account
reconciliations.
(6) Program administration records. (i) Records demonstrating
compliance with the written agreements required by Sec. 92.504.
(ii) Records demonstrating compliance with the applicable uniform
administrative requirements required by Sec. 92.505.
(iii) Records documenting required inspections, monitoring reviews
and audits, and the resolution of any findings or concerns.
(7) Records concerning other Federal requirements. (i) Equal
opportunity and fair housing records.
(A) Data on the extent to which each racial and ethnic group and
single-headed households (by gender of household head) have applied
for, participated in, or benefited from, any program or activity funded
in whole or in part with HOME funds.
(B) Documentation of actions undertaken to meet the requirements of
24 CFR Part 135 which implements section 3 of the Housing Development
Act of 1968, as amended (12 U.S.C. 1701u).
(C) Documentation of the actions the participating jurisdiction has
taken to affirmatively further fair housing.
(ii) Affirmative marketing and MBE/WBE records.
(A) Records demonstrating compliance with the affirmative marketing
procedures and requirements of Sec. 92.351.
(B) Documentation and data on the steps taken to implement the
jurisdiction's outreach programs to minority-owned (MBE) and female-
owned (WBE) businesses including data indicating the racial/ethnic or
gender character of each business entity receiving a contract or
subcontract of $25,000 or more paid, or to be paid, with HOME funds;
the amount of the contract or subcontract, and documentation of
participating jurisdiction's affirmative steps to assure that minority
business and women's business enterprises have an equal opportunity to
obtain or compete for contracts and subcontracts as sources of
supplies, equipment, construction, and services.
(iii) Records demonstrating compliance with the environmental
review requirements of Sec. 92.352 and 24 CFR part 58, including flood
insurance requirements.
(iv) Records demonstrating compliance with the requirements of
Sec. 92.353 regarding displacement, relocation, and real property
acquisition, including project occupancy lists identifying the name and
address of all persons occupying the real property on the date
described in Sec. 92.353(c)(2)(i)(A), moving into the property on or
after the date described in Sec. 92.353(c)(2)(i)(A), and occupying the
property upon completion of the project.
(v) Records demonstrating compliance with the labor requirements of
Sec. 92.354, including contract provisions and payroll records.
(vi) Records demonstrating compliance with the lead-based paint
requirements of Sec. 92.355.
(vii) Records supporting exceptions to the conflict of interest
prohibition pursuant to Sec. 92.356.
(viii) Debarment and suspension certifications required by 24 CFR
parts 24 and 91.
(ix) Records concerning intergovernmental review, as required by
Sec. 92.357.
(b) States with State Recipients. A State that distributes HOME
funds to State recipients must require State recipients to keep the
records required by paragraphs (a)(2), (a)(3), (a)(5), (a)(6) and
(a)(7) of this section, and such other records as the State determines
to be necessary to enable the State to carry out its responsibilities
under this part. The State need not duplicate the records kept by the
State recipients. The State must keep records concerning its review of
State recipients required under Sec. 92.201(b)(3).
(c) Period of record retention. All records pertaining to each
fiscal year of HOME funds must be retained for the most recent five
year period, except as provided below.
(1) For rental housing projects, records may be retained for five
years after the project completion date; except that records of
individual tenant income verifications, project rents and project
inspections must be retained for the most recent five year period,
until five years after the affordability period terminates.
(2) For homeownership housing projects, records may be retained for
five years after the project completion date, except for documents
imposing recapture/resale restrictions which must be retained for five
years after the affordability period terminates.
(3) For tenant-based rental assistance projects, records must be
retained for five years after the period of rental assistance
terminates.
(4) Written agreements must be retained for five years after the
agreement terminates.
(5) Records covering displacements and acquisition must be retained
for five years after the date by which all persons displaced from the
property and all persons whose property is acquired for the project
have received the final payment to which they are entitled in
accordance with Sec. 92.353.
(6) If any litigation, claim, negotiation, audit, monitoring,
inspection or other action has been started before the
[[Page 48785]]
expiration of the required record retention period records must be
retained until completion of the action and resolution of all issues
which arise from it, or until the end of the required period, whichever
is later.
(d) Access to records. (1) The participating jurisdiction must
provide citizens, public agencies, and other interested parties with
reasonable access to records, consistent with applicable state and
local laws regarding privacy and obligations of confidentiality.
(2) HUD and the Comptroller General of the United States, any of
their representatives, have the right of access to any pertinent books,
documents, papers or other records of the participating jurisdiction,
state recipients, and subrecipients, in order to make audits,
examinations, excerpts, and transcripts.
Sec. 92.509 Performance reports.
(a) Management reports. Each participating jurisdiction must submit
management reports on its HOME Investment Partnerships Program in such
format and at such time as HUD may prescribe.
(b) Annual performance report. For annual performance report
requirements, see 24 CFR part 91.
Subpart L--Performance Reviews and Sanctions
Sec. 92.550 Performance reviews.
(a) General. HUD will review the performance of each participating
jurisdiction in carrying out its responsibilities under this part
whenever determined necessary by HUD, but at least annually. In
conducting performance reviews, HUD will rely primarily on information
obtained from the participating jurisdiction's and, as appropriate, the
State recipient's records and reports, findings from on-site
monitoring, audit reports, and information generated from the
disbursement and information system established by HUD. Where
applicable, HUD may also consider relevant information pertaining to a
participating jurisdiction's or State recipient's performance gained
from other sources, including citizen comments, complaint
determinations, and litigation. Reviews to determine compliance with
specific requirements of this part will be conducted as necessary, with
or without prior notice to the participating jurisdiction or State
recipient. Comprehensive performance reviews under the standards in
paragraph (b) of this section will be conducted after prior notice to
the participating jurisdiction.
(b) Standards for comprehensive performance review. A participating
jurisdiction's performance will be comprehensively reviewed
periodically, as prescribed by HUD, to determine:
(1) For local participating jurisdictions and State participating
jurisdictions administering their own HOME programs, whether the
participating jurisdiction has committed the HOME funds in the United
States Treasury account as required by Sec. 92.500 and expended the
funds in the United States Treasury account as required by Sec. 92.500,
and has met the requirements of this part, particularly eligible
activities, income targeting, affordability, and matching requirements;
or
(2) For State participating jurisdictions distributing HOME funds
to State recipients, whether the State has met the matching
contribution and other requirements of this part; has distributed the
funds in accordance with the requirements of this part; and has made
such reviews and audits of its State recipients as may be appropriate
to determine whether they have satisfied the requirements of paragraph
(b)(1) of this section.
Sec. 92.551 Corrective and remedial actions.
(a) General. HUD will use the procedures in this section in
conducting the performance review as provided in Sec. 92.550 and in
taking corrective and remedial actions.
(b) Performance review.
(1) If HUD determines preliminarily that the participating
jurisdiction has not met a requirement of this part, the participating
jurisdiction will be given notice of this determination and an
opportunity to demonstrate, within the time prescribed by HUD (not to
exceed 30 days) and on the basis of substantial facts and data, that it
has done so.
(2) If the participating jurisdiction fails to demonstrate to HUD's
satisfaction that it has met the requirement, HUD will take corrective
or remedial action in accordance with this section or Sec. 92.552.
(c) Corrective and remedial actions. Corrective or remedial actions
for a performance deficiency (failure to meet a provision of this part)
will be designed to prevent a continuation of the deficiency; mitigate,
to the extent possible, its adverse effects or consequences; and
prevent its recurrence.
(1) HUD may instruct the participating jurisdiction to submit and
comply with proposals for action to correct, mitigate and prevent a
performance deficiency, including:
(i) Preparing and following a schedule of actions for carrying out
the affected activities, consisting of schedules, timetables, and
milestones necessary to implement the affected activities;
(ii) Establishing and following a management plan that assigns
responsibilities for carrying out the remedial actions;
(iii) Canceling or revising activities likely to be affected by the
performance deficiency, before expending HOME funds for the activities;
(iv) Reprogramming HOME funds that have not yet been expended from
affected activities to other eligible activities;
(v) Reimbursing its HOME Investment Trust Fund in any amount not
used in accordance with the requirements of this part;
(vi) Suspending disbursement of HOME funds for affected activities;
and
(vii) Making matching contributions as draws are made from the
participating jurisdiction's HOME Investment Trust Fund United States
Treasury Account.
(2) HUD may also change the method of payment from an advance to
reimbursement basis; and take other remedies that may be legally
available.
Sec. 92.552 Notice and opportunity for hearing; sanctions.
(a) If HUD finds after reasonable notice and opportunity for
hearing that a participating jurisdiction has failed to comply with any
provision of this part and until HUD is satisfied that there is no
longer any such failure to comply:
(1) HUD shall reduce the funds in the participating jurisdiction's
HOME Investment Trust Fund by the amount of any expenditures that were
not in accordance with the requirements of this part; and
(2) HUD may do one or more of the following:
(i) Prevent withdrawals from the participating jurisdiction's HOME
Investment Trust Fund for activities affected by the failure to comply;
(ii) Restrict the participating jurisdiction's activities under
this part to activities that conform to one or more model programs
which HUD has developed in accordance with section 213 of the Act;
(iii) Remove the participating jurisdiction from participation in
allocations or reallocations of funds made available under subpart B or
J of this part;
(iv) Require the participating jurisdiction to make matching
contributions in amounts required by Sec. 92.218(a) as HOME funds are
drawn from the participating jurisdiction's
[[Page 48786]]
HOME Investment Trust Fund United States Treasury Account. Provided,
however, that HUD may on due notice suspend payments at any time after
the issuance of a notice of opportunity for hearing pursuant to
paragraph (b)(1) of this section, pending such hearing and a final
decision, to the extent HUD determines such action necessary to
preclude the further expenditure of funds for activities affected by
the failure to comply.
(b) Proceedings. When HUD proposes to take action pursuant to this
section, the respondent in the proceedings will be the participating
jurisdiction, or at HUD's option, the State recipient.
(1) Notice of opportunity for hearing. HUD shall notify the
respondent in writing of the proposed action and of the opportunity for
a hearing. The notice shall be sent by first class mail. The notice
shall specify:
(i) In a manner which is adequate to allow the respondent to
prepare its response, the basis upon which HUD determined that the
respondent failed to comply with a provision of this part;
(ii) That the hearing procedures are governed by these rules;
(iii) That the respondent has 14 days from receipt of the notice
within which to provide a written request for a hearing to the Chief
Docket Clerk, Office of Administrative Law Judges, and the address and
telephone number of the Chief Docket Clerk;
(iv) The action HUD proposes to take and that the authority for
this action is Sec. 92.552; and
(v) That if the respondent fails to request a hearing within the
time specified, HUD's determination that the respondent failed to
comply with a provision of this part shall be final and HUD may proceed
to take the proposed action.
(2) Initiation of hearing. The respondent shall be allowed 14 days
from receipt of the notice within which to notify the Chief Docket
Clerk, Office of Administrative Law Judges, of its request for a
hearing. If no request is received within the time specified, HUD's
determination that the respondent failed to comply with a provision of
this part shall be final and HUD may proceed to take the proposed
action.
(3) Administrative Law Judge. Proceedings conducted under these
rules shall be presided over by an ALJ. The case shall be referred to
the ALJ at the time a hearing is requested. The ALJ shall promptly
notify the parties of the time and place at which the hearing will be
held. The ALJ shall conduct a fair and impartial hearing and take all
action necessary to avoid delay in the disposition of proceedings and
to maintain order. The ALJ shall have all powers necessary to those
ends, including but not limited to the power to:
(i) Administer oaths and affirmations;
(ii) Issue subpoenas as authorized by law;
(iii) Rule upon offers of proof and receive relevant evidence;
(iv) Order or limit discovery before the hearing as the interests
of justice may require;
(v) Regulate the course of the hearing and the conduct of the
parties and their counsel;
(vi) Hold conferences for the settlement or simplification of the
issues by consent of the parties;
(vii) Consider and rule upon all procedural and other motions
appropriate in adjudicative proceedings; and
(viii) Make and file initial determinations.
(4) Ex parte communications. An ex parte communication is any
communication with an ALJ, direct or indirect, oral or written,
concerning the merits or procedures of any pending proceeding which is
made by a party in the absence of any other party. Ex parte
communications are prohibited except where the purpose and content of
the communication have been disclosed in advance or simultaneously to
all parties, or the communication is a request for information
concerning the status of the case. Any ALJ who receives an ex parte
communication which the ALJ knows or has reason to believe is
unauthorized shall promptly place the communication, or its substance,
in all files and shall furnish copies to all parties. Unauthorized ex
parte communications shall not be taken into consideration in deciding
any matter in issue.
(5) The hearing. All parties shall have the right to be represented
at the hearing by counsel. The ALJ shall conduct the proceedings in an
expeditious manner while allowing the parties to present all oral and
written evidence which tends to support their respective positions, but
the ALJ shall exclude irrelevant, immaterial or unduly repetitious
evidence. HUD has the burden of proof in showing by a preponderance of
the evidence that the respondent failed to comply with a provision of
this part. Each party shall be allowed to cross-examine adverse
witnesses and to rebut and comment upon evidence presented by the other
party. Hearings shall be open to the public. So far as the orderly
conduct of the hearing permits, interested persons other than the
parties may appear and participate in the hearing.
(6) Transcripts. Hearings shall be recorded and transcribed only by
a reporter under the supervision of the ALJ. The original transcript
shall be a part of the record and shall constitute the sole official
transcript. Respondents and the public, at their own expense, may
obtain copies of the transcript.
(7) The ALJ's decision. At the conclusion of the hearing, the ALJ
shall give the parties a reasonable opportunity to submit proposed
findings and conclusions and supporting reasons therefor. Generally
within 60 days after the conclusion of the hearing, the ALJ shall
prepare a written decision which includes a statement of findings and
conclusions, and the reasons or basis therefor, on all the material
issues of fact, law or discretion presented on the record and the
appropriate sanction or denial thereof. The decision shall be based on
consideration of the whole record or those parts thereof cited by a
party and supported by and in accordance with the reliable, probative,
and substantial evidence. A copy of the decision shall be furnished to
the parties immediately by first class mail and shall include a notice
that any requests for review by the Secretary must be made in writing
to the Secretary within 30 days of the receipt of the decision.
(8) The record. The transcript of testimony and exhibits, together
with the decision of the ALJ and all papers and requests filed in the
proceeding, constitutes the exclusive record for decision and, on
payment of its reasonable cost, shall be made available to the parties.
After reaching the initial decision, the ALJ shall certify to the
complete record and forward the record to the Secretary.
(9) Review by the Secretary. The decision by the ALJ shall
constitute the final decision of the Secretary unless, within 30 days
after the receipt of the decision, either the respondent or the
Assistant Secretary files an exception and request for review by the
Secretary. The excepting party must transmit simultaneously to the
Secretary and the other party the request for review and the basis of
the party's exceptions to the findings of the ALJ. The other party
shall be allowed 30 days from receipt of the exception to provide the
Secretary and the excepting party with a written reply. The Secretary
shall then review the record of the case, including the exceptions and
the reply. On the basis of such review, the Secretary shall issue a
written determination, including a statement of the rationale therefor,
affirming, modifying or revoking the
[[Page 48787]]
decision of the ALJ. The Secretary's decision shall be made and
transmitted to the parties within 60 days after the decision of the ALJ
was furnished to the parties.
Dated: August 28, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-22864 Filed 9-13-96; 8:45 am]
BILLING CODE 4210-33-P
