[Federal Register Volume 63, Number 17 (Tuesday, January 27, 1998)]
[Notices]
[Pages 4076-4087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1939]
[[Page 4075]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
Indian Housing Block Grant Program--Revised Notice of Transition
Requirements; Notice
Federal Register / Vol. 63, No. 17 / Tuesday, January 27, 1998 /
Notices
[[Page 4076]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-4170-N-11]
RIN: 2577-AB74
Indian Housing Block Grant Program--Revised Notice of Transition
Requirements
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Revised notice of transition requirements.
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SUMMARY: On January 27, 1997 (62 FR 3972), HUD published for public
comment a notice to implement that part of section 106 of the Native
American Housing Assistance and Self-Determination Act of 1996
(NAHASDA) which requires HUD to establish the requirements necessary to
provide for the transition from the provision of assistance for Indian
tribes and Indian housing authorities under the United States Housing
Act of 1937 and other related provisions of law to the provision of
assistance in accordance with NAHASDA. The January 27, 1997 notice also
provided notice of the negotiated rulemaking process for the
development of regulations necessary to implement NAHASDA, and
requested nominations for membership on the negotiated rulemaking
committee. This notice addresses the public comments received on the
January 27, 1997 transition requirements, and provides additional
transition guidance and requirements.
DATES: The revised transition requirements are effective upon
publication.
IHP submission date: No earlier than the publication date of the
final regulations implementing NAHASDA and no later than July 1, 1998.
Effective date of NAHASDA section 701(c): November 3, 1998.
FOR FURTHER INFORMATION CONTACT: Deborah Lalancette, National Office of
Native American Programs, Department of Housing and Urban Development,
1999 Broadway, Suite 3390, Denver, CO; telephone (303) 675-1600 (this
is not a toll-free number). Hearing or speech-impaired individuals may
access this number via TTY by calling the toll-free Federal Information
Relay Service at 1-800-877-8339.
Indian tribes or tribally designated housing entities with specific
questions relating to the preparation of Indian Housing Plans as
required by this notice may call their Area Office of Native American
Programs for assistance in resolving their questions. The telephone
numbers and addresses for these Offices appear in Question 7 of this
notice.
SUPPLEMENTARY INFORMATION:
I. Statutory Background
The Native American Housing Assistance and Self-Determination Act
of 1996 (Pub. L. 104-330, approved October 26,1996) (NAHASDA)
reorganizes the system of Federal housing assistance to Native
Americans by eliminating several separate programs of assistance and
replacing them with a single block grant program. Beginning on October
1, 1997, the first day of the 1998 fiscal year (FY), a single block
grant program replaced assistance previously authorized under:
1. The United States Housing Act of 1937 (1937 Act);
2. The Indian Housing Child Development Program under Section 518
of the Cranston-Gonzalez National Affordable Housing Act (12 U.S.C.
1701z-6 note);
3. The Youthbuild Program under subtitle D of title IV of the
Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12899 et
seq.);
4. The Public Housing Youth Sports Program under section 520 of the
Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 11903a);
5. The HOME Investment Partnerships Program under title II of the
Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12721 et
seq.); and
6. Housing assistance for the homeless under title IV of the
Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11361 et seq.)
and the Innovative Homeless Demonstration Program under section 2(b) of
the HUD Demonstration Act of 1993 (42 U.S.C. 11301 note).
In addition to simplifying the process of providing housing
assistance, the purpose of NAHASDA is to provide Federal assistance for
Indian tribes in a manner that recognizes the right of tribal self-
governance.
Section 106 of NAHASDA sets out the general procedure for the
implementation of the new Indian housing block grant (IHBG) program.
The procedure described is a two-step process. First, section 106(a)
requires the publication of a notice in the Federal Register not later
than 90 days from enactment of NAHASDA. The purpose of the notice is to
establish any requirements necessary for the transition from the
provision of assistance for Indian tribes and Indian housing
authorities under the 1937 Act and other related provisions of law to
the provision of assistance in accordance with NAHASDA.
Secondly, section 106(b) requires that HUD issue final regulations
implementing NAHASDA no later than September 1, 1997. Further, section
106(b)(2)(A) of NAHASDA provides that all regulations required under
NAHASDA be issued in accordance with the procedures of the Negotiated
Rulemaking Act of 1990 (5 U.S.C. 561-570). Accordingly, the Secretary
of HUD established the Native American Housing Assistance & Self-
Determination Negotiated Rulemaking Committee to negotiate and develop
a proposed rule implementing NAHASDA. This proposed rule was published
on July 2, 1997 (62 FR 35718).
II. The January 27, 1997 Transition Notice and the July 2, 1997
Proposed Rule
On January 27, 1997 (62 FR 3972), HUD published the transition
notice required by section 106(a) of NAHASDA. As directed by section
106(a), the January 27, 1997 notice requested public comment on the
transition requirements and invited nominations for membership on the
negotiated rulemaking committee. The January 27, 1997 notice described
in detail the transition requirements and the establishment of the
negotiated rulemaking committee.
The public comment period on the transition notice expired on
February 27, 1997. Twelve comments were submitted on the transition
requirements. Additionally, sixteen nominations for negotiated
rulemaking committee membership were received. In several cases, the
public comments raised issues more appropriately addressed in the
proposed rule implementing NAHASDA, rather than in the transition
requirements. Accordingly, the proposed rule addresses many of the
public comments received on the January 27, 1997 transition notice.
Section III. of this notice presents a summary of the significant
issues raised by the public commenters on the January 27, 1997
transition requirements and HUD's responses to these comments. Where
appropriate, readers are referred to the provisions of the July 2, 1997
proposed rule that address the issue raised by the commenter.
The July 2, 1997 rule contains a detailed description of the
proposed regulatory requirements and the negotiated rulemaking process.
The public comment deadline on the proposed rule was August 18, 1997.
All comments will be considered in the development of the final rule.
[[Page 4077]]
III. Discussion of Public Comments on the January 27, 1997
Transition Requirements
Indian Housing Plan Submission Date of June 1, 1997 Is Not Reasonable
Comment. Eight of the commenters objected to the June 1, 1997 IHP
submission deadline established by the January 27, 1997 notice. The
commenters believed that this date would not provide sufficient time
for relevant tribal input in the development of the IHP. Specifically,
it would not have allowed housing authorities (HAs) to adequately
compile local and regional data and develop a quality, comprehensive
housing plan.
Several of these commenters suggested alternate IHP submission
dates. For example, five commenters objected to the submission of an
IHP prior to the development of regulations implementing NAHASDA. Three
of the commenters suggested that HUD extend the IHP submission deadline
to August 1, 1997. This date is based on section 103 of NAHASDA, which
provides HUD with a 60-day period to review an IHP submitted by a tribe
or its TDHE. Since NAHASDA becomes effective on October 1, 1997, this
alternate August date would provide HUD with a 60-day review period
prior to the statute's effective date.
Response. HUD has addressed the concerns raised by these
commenters. On February 24, 1997 (62 FR 8258), HUD published a notice
in the Federal Register extending the IHP submission deadline to
November 3, 1997. With the publication of the proposed rule, many
commenters indicated that the deadline did not provide sufficient time
to prepare an IHP. Also, it is not expected the regulations
implementing NAHASDA will be effective by November 3, 1997. Therefore,
it is unreasonable to expect a recipient to submit a plan prior to
publication date of the program regulations.
Based on the above, this transition notice is establishing new IHP
submission dates for Fiscal Year 1998 only. An IHP can be submitted no
earlier than the publication date of the final regulations implementing
NAHASDA and no later than July 1, 1998. The July 1, 1998, date is
necessary in order to provide for a 60-day review period by the Office
of Native American Program (ONAP) field staff and reservation of funds
prior to September 30, 1998. The final regulations will establish IHP
submission dates for all future years.
October 1, 1997 Implementation Date is Premature
Section 107 of NAHASDA states that ``[e]xcept as otherwise
expressly provided in this Act, this Act * * * shall take effect on
October 1, 1997.'' Four of the commenters expressed concern about the
short statutory deadline for the implementation of NAHASDA. The
commenters believe that additional time is necessary for the successful
implementation of this new program.
One of these commenters suggested that HUD use the waiver authority
granted in section 101(b)(2) of NAHASDA to waive the requirement for an
IHP submission in FY 1998, in order to permit HUD and affected Indian
tribes adequate time to develop comprehensive final regulations
implementing NAHASDA. This commenter also suggested that the Negotiated
Rulemaking Committee develop interim regulations to put in place for FY
1998 to guide tribes in the administration of block grants during this
interim period, rather than racing to complete regulations by October
1, 1997.
Response. The Negotiated Rulemaking Committee has developed a work
schedule which it believes provides for the effective implementation of
NAHASDA in a timely manner.
IHP Should Be Format Driven Rather Than Forms Driven
Comment. One commenter urged that HUD not implement the IHP
requirement by prescribing a series of forms. The commenter believes
that a forms driven approach will stifle innovation and increase
administrative burden. This commenter fears that beneficial information
might be omitted from the IHP if the tribe or its TDHE is unable to
make it fit into a prescribed HUD form. Further, each planning
innovation could potentially require an updated or new form.
Accordingly, the commenter suggested that HUD maximize the flexibility
available to tribes and their TDHEs by merely requiring that the IHP
follow a certain format.
Response. The Negotiated Rulemaking Committee has considered this
comment in the development of the proposed regulations. Interested
readers should refer to the proposed requirements of 24 CFR part 1000,
subpart C, which would govern IHP submission requirements.
Cooperation Agreement Requirement May Prevent the Receipt of Funding
Comment. The January 27, 1997 notice requires that the IHP include
a certification that the tribe or its TDHE has entered into, or has
begun negotiations to enter into, a local cooperation agreement with
the governing body of the locality within which any affordable housing
to be assisted with grant amounts will be situated (62 FR 3974). One
commenter expressed concern that this requirement may prevent a tribe
or its TDHE from receiving funding in situations where, through no
fault of the housing entity or the affected tribal members, such an
agreement cannot be negotiated before grant funds are needed to
maintain existing housing. The commenter noted that the cooperation
agreement requirement is set forth in NAHASDA section 101(b). The
commenter supported amendments to NAHASDA which would permit HUD to
waive the requirement for a cooperation agreement.
Response. The Negotiated Rulemaking Committee considered this
public comment in the development of the proposed rule. Interested
readers should consult the preamble to the July 2, 1997 proposed rule,
which discusses the requirement for a local cooperation agreement and
highlights this issue for public comment (See 62 FR 35728).
Concerns Regarding Tax Exemption and Reimbursement Requirements
Comment. The January 27, 1997 notice requires that the cooperation
agreement discussed above provide that the tribe or its TDHE is exempt
from all real or personal property taxes. The tribe or TDHE, however,
must compensate the relevant political subdivision for the costs of
providing governmental services (such as police and fire protection).
Alternatively, if the tribe or its TDHE is not tax exempt, the
cooperation agreement must provide for the reimbursement of the tribe
or TDHE. The reimbursement amount will be equal to the difference
between the tax amount and the costs of providing governmental
services. (62 FR 3974.)
One commenter expressed reservations about this requirement. The
commenter noted that a tribe or its TDHE may initiate a program to
provide off-reservation housing within its area of operation. In these
cases, a city council or board of supervisors may have to approve a
cooperation agreement. The commenter wrote that under State law the
council or board may lack the statutory authority to exempt a
particular housing unit from real or personal property taxes imposed by
state statute. If the combination of those taxes exceed the cost of
providing governmental services, the affected city or county may be
unable or unwilling to
[[Page 4078]]
remit the difference in cash or tax remission.
The commenter suggested that HUD address this concern by keeping
the requirement for a cooperation agreement separate from the tax
exemption requirement. The commenter wrote that NAHASDA treats the
local cooperation agreement requirement and the tax exemption
requirement in separate subsections (See NAHASDA sections 101(c) and
(d).) The certification required in the January 27, 1997 notice folds
these requirements together, making the tax exemption requirements the
contents of the cooperation agreements. The commenter noted that a
cooperation agreement could address subjects other than tax exemptions
and a tribe could comply with the tax exemption requirements without
necessarily having an agreement with a local jurisdiction.
Response. The Negotiated Rulemaking Committee considered this
comment in the development of the July 2, 1997 proposed rule.
Interested readers should consult the preamble to the proposed rule,
which discusses the tax exemption requirement and requests additional
public comment on this issue (See 62 FR 35728).
Negotiated Rulemaking Committee Should Develop Budget Scenarios
Comment. Section 102 of NAHASDA requires that the IHP include an
operating budget. One commenter questioned the ability of a tribe or
its TDHE to develop a budget prior to FY 1998 appropriations. This
commenter recommended that the Negotiated Rulemaking Committee develop
budget information to assist tribes and their TDHEs in the preparation
of the IHPs. The commenter noted that IHAs have an advantage in
estimating probable allocation amounts based on historical allocations
and awards. However, some tribes (especially those currently served by
an umbrella housing authority) considering whether or not to submit an
IHP may have very little to work from.
Response. The Negotiated Rulemaking Committee considered this issue
in the development of the proposed rule. Interested readers should
refer to the July 2, 1997 proposed regulatory requirements. Further,
section 302(d) of NAHASDA speaks to funding levels under the Act.
Transition Notice Should Establish Streamlined IHP Requirements for
Small Tribes and Small TDHEs
Comment. Section 102(f)(1) of NAHASDA permits the Secretary to
``waive any [IHP] requirements * * * that the Secretary determines are
burdensome or unnecessary for'' small tribes and small TDHEs. One
commenter questioned why the transition notice had not established such
streamlined IHP requirements for these tribes and housing entities.
Response. The Negotiated Rulemaking Committee considered this
comment in the development of the proposed rule. The proposed rule
provides that there are no separate IHP requirements for small Indian
tribes. The IHP requirements set forth in proposed 24 CFR part 1000,
subpart C are minimal. Further, HUD has general authority under section
101 of NAHASDA to waive IHP requirements when an Indian tribe cannot
comply with IHP requirements due to circumstances beyond its control.
The waiver authority under section 101 provides flexibility to address
the needs of every Indian tribe, including small Indian tribes.
Transition Requirements Should Reference Statutory Review Criteria
Comment. Section 103 of NAHASDA provides that the Secretary of HUD
shall conduct a limited review of each Indian housing plan to ensure
that the plan complies with the NAHASDA submission requirements for
IHPs. One commenter believes that the January 27, 1997 notice should
have provided an interpretation of the phrase ``limited review.''
Section 103 of NAHASDA also establishes a 60-day deadline for review of
an IHP. Further, this section requires that the Secretary of HUD
provide an explanation to the tribe or TDHE if the Secretary finds the
IHP deficient. The commenter believes these statutory review
requirements should also have been referenced in the January 27, 1997
notice.
Response. The Negotiated Rulemaking Committee considered this
comment in the development of the proposed rule. Interested readers
should refer to proposed 24 CFR part 1000, subpart C, which would
govern IHP submission procedures (including the process for HUD review
of IHPs and IHP amendments).
Concerns Regarding TDHE Designation
Comment. Section 102 of NAHASDA provides that an IHP may be
submitted by an Indian tribe or, if specifically empowered by the
recognized tribal government, by the TDHE. The January 27, 1997 notice
provided that if ``a tribe does not specifically authorize an entity to
act as its tribally designated housing entity, the tribe's * * * HA
under the United States Housing Act of 1937, if there is one on the
date of NAHASDA's enactment, is the tribe's [default] TDHE'' (62 FR
3973).
One of the commenters believes that this provision violates the
principle of tribal self-governance. First, the provision would
delegate to the HA the authority to administer the block grant even if
the tribe has not taken any affirmative step to designate the HA as its
TDHE. Secondly, the January 27, 1997 notice fails to specify the
timeframe in which a tribe would lose the important right to designate
the TDHE. Further, the provision is unclear as to whether the IHP
developed by an HA acting as the default TDHE must still be reviewed
and approved by the tribe.
Response. HUD agrees with the commenter that the transition
requirements must reflect the right of tribal self-governance and the
unique relationship between the government of the United States and the
governments of Indian tribes. This notice makes the appropriate
revisions to the January 27, 1997 transition notice. The notice
clarifies that NAHASDA section 102(d) requires that a tribe identify
its TDHE, if any, in its IHP. Specifically, when an IHP is submitted on
behalf of a tribe by its TDHE, the IHP must contain a certification by
the recognized tribal government that either (1) the tribe has had an
opportunity to review the IHP and has authorized its submission by the
TDHE, or (2) the tribe has delegated to the TDHE the authority to
submit an IHP without prior review by the tribe. This certification
must be included in the IHP, even in those cases where the tribe's HA
under the United States Housing Act of 1937 is serving as the tribe's
default TDHE.
``Broad Discretion'' of Section 204 of NAHASDA Should Be Referenced
Comment. Section 204(a) of NAHASDA provides:
(a) Subject to * * * [program requirements] and the Indian
housing plan for an Indian tribe, the recipient for that tribe shall
have--
(1) the discretion to use grant amounts for affordable housing
activities through equity investments, interest-bearing loans or
advances, noninterest bearing loans or advances, interest subsidies,
leveraging of private investments, or any other form of assistance
that the Secretary has determined to be consistent with the purposes
of this Act; and
(2) the right to establish the terms of assistance.
One commenter interprets section 204(a) very broadly and
recommended that the January 27, 1997 notice be amended to reference
the ample discretion it believes this statutory provision grants to a
tribe or its TDHE.
[[Page 4079]]
Specifically, the commenter requested that HUD clarify that grant
recipients have the discretion to use grant amounts for affordable
housing activities using the alternatives expressly set out in NAHASDA
(e.g., equity investments, interest-bearing loans or advances, etc.).
The commenter believes that only in the case of ``any other form of
assistance'' not expressly enumerated in section 204 does NAHASDA
authorize the Secretary to determine whether the assistance is
consistent with the purposes of the Act.
Response. The Negotiated Rulemaking Committee considered this
comment in the development of the July 2, 1997 proposed rule.
Interested readers should refer to proposed 24 CFR part 1000, subpart
B, which would govern eligible affordable housing activities.
Exceptions to Low-Income Eligibility Requirements Should Be Identified
Comment. Section 201 of NAHASDA provides that, except under certain
specified circumstances, ``eligible housing activities under this Act
shall be limited to low-income Indian families on Indian reservations
and other Indian areas.'' One of the commenters suggested that the
January 27, 1997 notice should be amended to identify the exceptions to
this general rule.
Response. The Negotiated Rulemaking Committee considered this
comment in the development of the proposed regulations. Interested
readers are referred to proposed 24 CFR part 1000, subpart B, which
would govern eligible affordable housing activities (including the
provision of assistance to non low-income families).
Grant Agreement Process Should Be Identified
Comment. One commenter believes that the January 27, 1997 notice
does not seem to anticipate or require the development of a grant
agreement with the tribes. The commenter worried that the notice did
not provide sufficient information regarding the grant agreements and
the block grant process. For example, the IHP must contain goals and
objectives to be accomplished during 1998. The commenter wondered
whether these activities would be binding on the tribe through the
grant agreement. The commenter recommended that HUD identify the grant
agreement document or the process of developing the grant agreement as
early as possible.
Response. The Negotiated Rulemaking Committee considered this
comment in the development of the proposed rule. Interested readers
should consult the proposed regulatory requirements for additional
detail.
IV. Revised Effective Date for Section 701(c) of NAHASDA
Section 701(c) of NAHASDA establishes a new requirement for the
Indian Housing Loan Guarantee Program (also called the Section 184
Program) under section 184 of the Housing and Community Development Act
of 1992 (12 U.S.C. 1515z-13a). Specifically, section 701(c) provides
that Indian tribes wishing to participate in the Section 184 program
must submit an IHP that provides for the use of Section 184 loan
guarantees.
In order to prevent any interruption in the processing of Section
184 loan guarantees, HUD must establish an effective date for section
701(c) that takes into account the timeframes for submission and HUD
review of IHPs. The January 27, 1997 transition notice established an
effective date of October 1, 1997 for section 701(c), based on an IHP
submission deadline of June 1, 1997. As described above, HUD is
extending the IHP deadline date to no earlier than the publication date
of the final regulations implementing NAHASDA and no later than July 1,
1998. This notice conforms the effective date for section 701(c) to the
IHP deadline extension. Specifically, this notice amends the January
27, 1997 notice by establishing an effective date of November 3, 1998
for purposes of NAHASDA section 701(c).
V. Technical Correction to the January 27, 1997 Notice
The January 27, 1997 notice incorrectly designated the paragraph
listing the certifications as paragraph (d) of Question and Answer 3.
The paragraph should have been designated as paragraph (e). This notice
makes the necessary correction.
VI. Additional Transition Requirements
The January 27, 1997 notice stated that HUD may also issue a
supplemental notice with additional transition guidance and
requirements. Accordingly, additional guidance and requirements for the
treatment of housing, activities and funding under programs repealed by
NAHASDA are included in this notice. For the convenience of all parties
involved with NAHASDA, this notice presents the requirements of the
January 27, 1997 notice, amended as discussed in sections IV. and V. of
this notice, above, and the additional transition requirements in a
single, consolidated document. The additional requirements follow the
same Question and Answer format established in the January 27, 1997
notice and begin with Question 10 in this notice. If there are any
inconsistencies between the requirements in this notice and any final
rule issued under NAHASDA, the requirements of the rule shall govern.
VII. Findings and Certifications
Paperwork Reduction Act Statement
The information collection requirements contained in this notice
have been approved by the Office of Management and Budget under the
Paperwork Reduction Act of 1995 and assigned control number 2577-0218.
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.
Regulatory Planning and Review
This notice 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 notice 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, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500.
Executive Order 12612, Federalism
The General Counsel has determined, as the Designated Official for
HUD under section 6(a) of Executive Order 12612, Federalism, that the
policies contained in this notice will not have substantial direct
effects on states or their political subdivisions, or the relationship
between the federal government and the states, or on the distribution
of power and responsibilities among the various levels of government.
The notice only establishes temporary transition requirements for the
initial participation by Indian tribes in a new statutory program
Environmental Review
A Finding of No Significant Impact with respect to the environment
was made at the time of development of the January 27, 1997 notice in
accordance with HUD regulations at 24 CFR Part 50, which implement
section 102(2)(C) of the National Environmental Policy Act of 1969.
That Finding of No Significant Impact remains applicable to this notice
and is available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays in the Office of the Rules Docket Clerk, Office of General
Counsel,
[[Page 4080]]
Room 10276, Department of Housing and Urban Development, 451 Seventh
Street, SW, Washington, DC 20410-0500.
Transition Requirements for the Native American Housing Block Grant
Program
Question 1. How is funding made available under NAHASDA?
Answer 1. Under NAHASDA, funding is made available for affordable
housing activities on an annual basis, and is distributed each fiscal
year according to an allocation formula on behalf of Indian tribes who
submit an Indian Housing Plan (IHP) that is reviewed and approved by
HUD. Unlike other programs, NAHASDA funds are not awarded on a
competitive basis in which applications are given scores and are then
funded in rank order so that only the highest scoring applications are
funded. Every tribe, or entity designated by a tribe, that submits an
IHP which complies with the necessary requirements is awarded a block
grant which is a share of the available funds. The size of the share is
determined by the allocation formula. The award is called a block grant
because the recipient receives a single ``block'' of funds that may be
used for any eligible affordable housing activities in accordance with
the tribe's IHP.
Question 2. Who may submit an IHP to apply for a block grant?
Answer 2. An IHP may be submitted by an Indian tribe or, if
specifically empowered by the recognized tribal government, by the
tribally designated housing entity for the tribe. A tribally designated
housing entity (TDHE) is an entity other than the tribal government
which is authorized by the Indian tribe to receive the block grant
amounts and provide assistance according to the requirements of
NAHASDA.
NAHASDA section 102(d) requires that a tribe identify its TDHE, if
any, in its IHP. Specifically, when an IHP is submitted on behalf of a
tribe by its TDHE, the IHP must contain a certification by the
recognized tribal government that either: (1) the tribe has had an
opportunity to review the IHP and has authorized its submission by the
TDHE; or (2) the tribe has delegated to the TDHE the authority to
submit an IHP without prior review by the tribe. This certification
must be included in the IHP, even in those cases where the tribe's HA
under the United States Housing Act of 1937 is serving as the tribe's
default TDHE.
An IHP submitted by a TDHE may cover more than one Indian tribe,
but only if the IHP contains the certification described in the
paragraph above from each tribe covered by the IHP. This option
provides additional flexibility by permitting several tribes to agree
to have their affordable housing activities administered by a single
TDHE for reasons of greater economy or increased efficiency, or for any
other reason.
Question 3. What information must be included in an IHP?
Answer 3. Each IHP shall be in a form prescribed by HUD and every
IHP consists of two parts, a 5-year plan and a 1-year plan, each of
which is discussed separately below. The NAHASDA final rule may also
contain additional plan requirements.
The 5-year plan must contain the following information for the 5-
year period beginning with the fiscal year (FY) for which the plan is
submitted (for the first IHP submission under the transition
requirements of this notice, the five fiscal years covered are 1998,
1999, 2000, 2001 and 2002):
(a) Mission Statement--A general statement of the mission of the
Indian tribe to serve the housing needs of the low-income families in
the jurisdiction of the Indian tribe during the 5-year period.
(b) Goals and Objectives--A statement of the goals and objectives
of the Indian tribe to enable the tribe to serve the needs identified
in the Mission Statement during the 5-year period.
(c) Activities Plan--An overview of the housing activities,
including the NAHASDA-eligible affordable housing activities, planned
during the 5-year period with an analysis of the manner in which the
activities will enable the tribe to meet its mission, goals, and
objectives.
The 1-year plan must contain the following information relating to
the upcoming fiscal year (FY 1998 for purposes of the first IHP
submission under the transition requirements of this notice):
(a) Goals and Objectives--A statement of the goals and objectives
to be accomplished during FY 1998, including the NAHASDA-eligible
affordable housing activities.
(b) Statement of Needs--A statement of the housing needs of the
low-income Indian families residing in the jurisdiction of the Indian
tribe and the means by which such needs will be addressed during FY
1998, including:
(1) A description of the estimated housing needs and the need for
assistance for the low-income Indian families in the jurisdiction,
including a description of the manner in which the geographical
distribution of assistance is consistent with the geographical needs
and needs for various categories of housing assistance; and
(2) A description of the estimated housing needs for all Indian
families in the jurisdiction.
(c) Financial Resources--An operating budget for the recipient that
includes:
(1) An identification and a description of the financial resources
reasonably available to the recipient to carry out the NAHASDA-eligible
affordable housing activities described in the IHP, including an
explanation of the manner in which amounts made available will leverage
additional resources; and
(2) The uses to which such resources will be committed, including
eligible affordable housing activities and administrative expenses.
(Section 101(h) of NAHASDA requires HUD, by regulation, to authorize
each recipient to use a percentage of any grant amounts received for
any reasonable administrative and planning expenses of the recipient
relating to carrying out NAHASDA and activities assisted with such
amounts, which may include costs for salaries of individuals engaged in
administering and managing affordable housing activities assisted with
grant amounts and expenses of preparing an IHP. This regulation will be
developed by the negotiated rulemaking committee who will be proposing
to HUD the percentage of grant amounts to be used for planning and
administrative expenses.
(d) Affordable Housing Resources--A statement of the affordable
housing resources currently available and to be made available during
FY 1998, including:
(1) A description of the significant characteristics of the housing
market in the tribe's jurisdiction, including the availability of
housing from other public sources, private market housing, and the
manner in which such characteristics influence the decision of the
recipient to use grant amounts for rental assistance, production of new
units, acquisition of existing units, or rehabilitation of units;
(2) A description of the structure, coordination, and means of
cooperation between the recipient and any other governmental entities
in the development, submission, or implementation of housing plans,
including a description of the involvement of private, public, and
nonprofit organizations and institutions, and the use of loan
guarantees under section 184 of the Housing and Community Development
Act of 1992, and other housing assistance provided by the Federal
Government for Indian tribes, including loans, grants, and mortgage
insurance;
(3) A description of the manner in which the plan will address the
needs
[[Page 4081]]
identified in the Statement of Needs in the 1-year plan required by
paragraph (b), above;
(4) A description of the manner in which the recipient will protect
and maintain the viability of housing owned and operated by the
recipient that was developed under a contract between HUD and an Indian
housing authority pursuant to the United States Housing Act of 1937;
(5) A description of any existing and anticipated homeownership
programs and rental programs to be carried out during FY 1998, and the
requirements and assistance available under such programs;
(6) A description of any existing and anticipated housing
rehabilitation programs necessary to ensure the long-term viability of
the housing to be carried out during FY 1998, and the requirements and
assistance available under such programs;
(7) A description of all other existing or anticipated housing
assistance provided by the recipient during FY 1998, including
transitional housing, homeless housing, college housing, supportive
services housing, and the requirements and assistance available under
such programs;
(8) A description of any housing to be demolished or disposed of,
and a timetable for such demolition or disposition;
(9) A description of the manner in which the recipient will
coordinate with tribal and State welfare agencies to ensure that
residents of such housing will be provided with access to resources to
assist in obtaining employment and achieving self-sufficiency;
(10) A description of the requirements established by the recipient
to promote the safety of residents of such housing, facilitate the
undertaking of crime prevention measures, allow resident input and
involvement, including the establishment of resident organizations, and
allow for the coordination of crime prevention activities between the
recipient and tribal and local law enforcement officials; and
(11) A description of the entity that will carry out the activities
under the IHP, including the organizational capacity and key personnel
of the entity.
(e) Certifications of compliance--The IHP must include the
following certifications:
(1) A certification that the recipient will comply with title II of
the Civil Rights Act of 1968 in carrying out activities funded by
NAHASDA, to the extent that such title is applicable, and other
applicable Federal statutes, including Section 504 of the
Rehabilitation Act of 1973;
(2) A certification that the recipient will maintain adequate
insurance coverage for housing units that are owned and operated or
assisted with grant amounts;
(3) A certification that policies are in effect and are available
for review by HUD and the public governing:
(i) The eligibility, admission, and occupancy of families for
housing assisted with grant amounts;
(ii) Rents charged, including the methods by which rents or
homebuyer payments are determined, for housing assisted with grant
amounts;
(iii) The management and maintenance of housing assisted with grant
amounts provided under this Act;
(4) If an IHP is submitted on behalf of a tribe by its tribally
designated housing entity (TDHE), the IHP must contain a certification
by the recognized tribal government that either:
(i) The tribe has had an opportunity to review the IHP and has
authorized its submission by the TDHE, or
(ii) The tribe has delegated to the TDHE the authority to submit an
IHP without prior review by the tribe;
(5) If an IHP that covers more than one Indian tribe is submitted
by a TDHE, each tribe covered by the IHP must submit as part of the IHP
the certification described in paragraph (4), immediately above;
(6) A certification that the governing body of the locality within
which any affordable housing to be assisted with the grant amounts will
be situated has entered into, or has begun negotiations, which must be
completed before any award of NAHASDA funds can be made, to enter into,
a local cooperation agreement with the recipient for the tribe
providing that:
(i) The affordable housing assisted with grant amounts received by
the recipient (exclusive of any portions not assisted with amounts
provided under NAHASDA) is exempt from all real and personal property
taxes levied or imposed by any State, tribe, city, county, or other
political subdivision; and
(ii) The recipient makes annual payments of user fees to compensate
such governments for the costs of providing governmental services,
including police and fire protection, roads, water and sewerage
systems, utilities systems and related facilities, or payments in lieu
of taxes to such taxing authority, in an amount equal to the greater of
$150 per dwelling unit or 10 percent of the difference between the
shelter rent and the utility cost, or such lesser amount as:
(A) Is prescribed by State, tribal, or local law;
(B) Is agreed to by the local governing body in the local
cooperation agreement; or
(C) The recipient and the local governing body agree in the local
cooperation agreement that such user fees or payments in lieu of taxes
shall not be made; or
(iii) If the affordable housing assisted with grant amounts
received by the recipient (exclusive of any portions not assisted with
amounts provided under NAHASDA) is not exempt from all real and
personal property taxes levied or imposed by any State, tribe, city,
county, or other political subdivision, that the tribe, State, city,
county, or other political subdivision in which the affordable housing
development is located contributes, in the form of cash or tax
remission, the amount by which the taxes paid with respect to the
development exceed the amounts prescribed in section (6)(ii) of the 1-
year plan requirements, above.
Question 4. What are the affordable housing activities that are
eligible for funding under NAHASDA?
Answer 4. Affordable housing activities are activities to develop
or to support affordable housing for rental or homeownership, or to
provide housing services with respect to affordable housing, for the
benefit of low-income Indian families on Indian reservations and other
Indian areas. In the case of a low-income family residing in a dwelling
unit assisted with NAHASDA grant amounts, affordable housing is housing
for which the monthly rent or homebuyer payment (as applicable) does
not exceed 30 percent of the family's monthly adjusted income. Eligible
affordable housing activities are described below in sections (a)
through (k) of this answer:
(a) Indian Housing Assistance--The provision of modernization or
operating assistance for housing previously developed or operated
pursuant to a contract between HUD and an Indian housing authority.
(b) Development--The acquisition, new construction, reconstruction,
or moderate or substantial rehabilitation of affordable housing, which
may include real property acquisition, site improvement, development of
utilities and utility services, conversion, demolition, financing,
administration and planning, and other related activities. Affordable
housing includes permanent housing for homeless persons who are persons
with disabilities, transitional housing, and single room occupancy
housing.
[[Page 4082]]
(c) Housing Services--The provision of housing-related services for
affordable housing, such as housing counseling in connection with
rental or homeownership assistance, establishment and support of
resident organizations and resident management corporations, energy
auditing, activities related to the provision of self-sufficiency and
other services, and other services related to assisting owners,
tenants, contractors, and other entities, participating or seeking to
participate in other housing activities assisted with grant amounts.
(d) Housing Management Services--The provision of management
services for affordable housing, including preparation of work
specifications, loan processing, inspections, tenant selection,
management of tenant-based rental assistance, and management of
affordable housing projects.
(e) Crime Prevention and Safety Activities--The provision of
safety, security, and law enforcement measures and activities
appropriate to protect residents of affordable housing from crime.
(f) Rental Assistance--The provision of tenant-based rental
assistance.
(g) Model Activities--Housing activities under model programs that
are designed to carry out the purposes of NAHASDA and are specifically
approved by HUD as appropriate for such purpose.
(h) Administrative Expenses--A percent of grant amounts, to be
determined in the final rule, may be used for any reasonable
administrative and planning expenses of a recipient relating to
carrying out NAHASDA and activities assisted with such amounts,
including costs for salaries of individuals engaged in administering
and managing affordable housing activities assisted with grant amounts
and the expenses of preparing an IHP.
Question 5. How may grant amounts be used to carry out eligible
activities?
Answer 5. In addition to being used to directly pay for eligible
activities, grant amounts may be used for affordable housing activities
through equity investments, interest-bearing loans or advances,
noninterest-bearing loans or advances, interest subsidies, leveraging
of private investments, or any other form of assistance that HUD
determines to be consistent with the purposes of NAHASDA. This answer
is provided from section 204--``Types of Investments''--of NAHASDA.
Guidance on the types of investments permissible under section 204 of
NAHASDA will be provided in the final regulations.
Question 6. When must the IHP required by these transition
requirements be submitted?
Answer 6. An IHP must be received by HUD no earlier than the
publication date of the final regulations implementing NAHASDA and no
later than July 1, 1998 in order to be considered for FY 1998 funding.
Question 53, below, also addresses this issue.
Question 7. Where must an IHP be submitted?
Answer 7. All IHPs must be submitted to the local Area Office of
Native American Programs as follows:
------------------------------------------------------------------------
Tribes and IHAs located ONAP address
------------------------------------------------------------------------
East of the Mississippi River Eastern/Woodlands Office of Native
(including all of Minnesota) American Programs, 5P, Metcalfe Federal
and Iowa. Building, 77 West Jackson Boulevard,
Chicago, Illinois 60604-3507, (312) 353-
1282 or (800) 735-3239, TTY Numbers: 1-
800-927-9275 or 312-886-3741.
Louisiana, Missouri, Kansas, Southern Plains Office of Native American
Oklahoma, and Texas except Programs, 6.IPI, 500 West Main Street,
for Yseleta del Sur. Suite 400, Oklahoma City, Oklahoma
73012, (405) 553-7520, 553-7480.
Colorado, Montana, Nebraska, Northern Plains Office of Native American
North Dakota, South Dakota, Programs, 8P, First Interstate Tower
Utah and Wyoming. North, 633 17th Street, Denver, Colorado
80202-3607, (303) 672-5462, TTY Number:
303-844-6158.
Arizona, California, New Southwest Office of Native American
Mexico, Nevada, and Yseleta Programs, 9EPI, Two Arizona Center, 400
del Sur in Texas. North Fifth Street, Suite 1650, Phoenix,
Arizona 85004-2361, (602) 379-4156, TTY
Number: 602-379-4461, or Albuquerque
Division of Native American Programs,
9EPIQ, Albuquerque Plaza, 201 3rd
Street, NW, Suite 1830, Albuquerque, New
Mexico 87102-3368, (505) 766-1372, TTY
Number: None.
Idaho, Oregon, and Washington Northwest Office of Native American
Programs, 10PI, 909 First Avenue, Suite
300, Seattle, Washington 98104-1000,
(206) 220-5270, TTY Number: (206) 220-
5185.
Alaska....................... Alaska Office of Native American
Programs, 10.1PI, 949 East 36th Avenue,
Suite 401, Anchorage, Alaska 99508-4399,
(907) 271-4633, TTY Number: (907) 271-
4328.
------------------------------------------------------------------------
Question 8. May an IHA continue to remain subject to the 1937 Act,
and convert to a PHA?
Answer 8. No, because the purpose and result of NAHASDA is the
exclusion of IHAs from the definition of a PHA as of September 30,
1997. After September 30, 1997, there may be IHAs that want to remain
subject to the 1937 Act, but the consequence of NAHASDA section 501 is
to make it impossible, after September 30, 1997, for an IHA to be
considered a PHA. Further, section 502(b) provides that any IHA housing
developed or operated under the 1937 Act must be considered and
maintained as affordable housing for purposes of NAHASDA, and precludes
the continued application of title I of the 1937 Act to IHAs after
September 30, 1997. Question 30, below, also addresses this issue.
Question 9. What happens to grants already made under the homeless,
Youthbuild and Indian HOME programs?
Answer 9. These grants continue to be governed by the statutes
authorizing the programs as those statutes read on September 30, 1997
and by the grant agreements. After completion of the funded activities,
the grants will be closed out in accordance with their program
requirements and grant agreements. Questions 37 and 38, below, also
address this issue.
General Impact on Housing and Funding
Question 10. On October 1, 1997, the Native American Housing
Assistance and Self-Determination Act of 1996 (NAHASDA) legislation
becomes effective. How does this impact the provision of housing
assistance to Native Americans?
Answer 10. NAHASDA terminates provision of housing assistance under
the United States Housing Act of 1937, as amended, (1937 Act) and
creates a new program of grants made directly to Indian tribes. The new
Indian Housing Block Grant (IHBG) is intended to provide greater
flexibility to tribes in determining how to address their housing needs
for low-income individuals within their jurisdiction.
[[Page 4083]]
Tribes assume a responsibility to maintain current housing stocks
developed under the 1937 Act.
Question 11. Does the change in governing legislation affect who
owns housing developed or assets and funds held by IHAs?
Answer 11. No. While IHA funds and assets become subject to the
requirements of NAHASDA on October 1, 1997, the ownership of the
housing funds and assets are not affected. Grants made to IHAs and the
assets of IHAs continue to belong to the IHA. IHAs that are created by
tribal ordinance are subject to the authority of the tribe. Tribes must
review their existing ordinances and other documents affecting the
organization and legal commitments of the tribe and its IHA to
determine how to transfer funds and assets of the IHA to the tribe or
its newly established tribally designated housing entity (TDHE).
Effect on 1937 Act Housing
Question 12. What happens to public housing units owned and
operated by IHAs?
Answer 12. All units owned by IHAs become ineligible for assistance
under the 1937 Act as of October 1, 1997. Public housing units owned
and operated by IHAs are considered Indian housing units and become
subject to NAHASDA on October 1, 1997.
Question 13. What happens to existing 1937 Act units if tribes in
those jurisdictions do not or cannot submit an IHP?
Answer 13. NAHASDA does not provide the statutory authority for HUD
to grant NAHASDA grant funds to an IHA, tribe or to a default TDHE
which cannot obtain a tribal certification, if the requisite IHP is not
submitted by a tribe or is determined to be out of compliance by HUD.
There may be circumstances where this may happen, and in those cases,
other methods of tribal, federal or private market support may have to
be sought to maintain and operate those 1937 Act units.
Question 14. Should the public housing stock owned by IHAs be
reflected in the current assisted stock element of the IHBG formula
under NAHASDA?
Answer 14. Yes.
Question 15. Will the housing units in the current development
pipeline be allowed to increase the 1937 Act count for NAHASDA formula
purposes?
Answer 15. Yes. Upon completion of housing units currently in the
development pipeline, HUD should be notified to adjust the information
reflected in the formula for existing 1937 Act units operated by the
IHA or recipient. The notification should take the same form as the
current notification for Date of Full Availability under the Indian
Housing program.
Question 16. What process would a tribe or TDHE follow in order to
admit over-income families to a vacant unit developed under the 1937
Act or for new units developed under the 1937 Act which will be counted
as Current Assisted Stock under the IHBG Formula?
Answer 16. Since the 1937 Act no longer applies to these units and
the NAHASDA final rule will only address the procedures for admitting
over-income families when using the recipient's annual grant amount,
there is a need to develop procedures for these units.
For units to be developed after September 30, 1997, with funds
provided under the 1937 Act, a recipient may use up to 10% of its funds
available from 1937 Act programs to admit families whose income fall
within 80 to 100% of median income without HUD approval. HUD approval
is required if a recipient plans to use more than 10% of its 1937 Act
funds for such assistance or to provide housing for families over 100%
of median income.
For vacancies in homeownership programs where the units were under
management as of September 30, 1997, occupancy by families whose income
falls within 80 to 100% of median income may not exceed 10% of the
dwelling units in the project or 5 dwelling units, whichever is
greater, without HUD approval. HUD approval is required if a recipient
plans to admit more than this amount in a project or to provide housing
for families over 100% of median income.
Question 17. Can an IHA or recipient develop additional units with
funds provided through the 1937 Act and have the extra units included
in the IHBG formula?
Answer 17. No. While developing the maximum number of affordable
housing units is encouraged, housing units over the number specified in
the original grant approval will not be included in the total number of
units developed with 1937 Act funds.
Question 18. Can an IHA be a NAHASDA sub-grantee of the tribe or
TDHE for the purpose of maintaining housing developed under the 1937
Act?
Answer 18. Yes. Additionally, an IHA could be a sub-grantee for the
purpose of developing and managing housing with NAHASDA funds.
Effect on 1937 Act Funding
Question 19. Must an IHA (or its successor entity) use grant funds
provided under the 1937 Act for the original purpose after October 1,
1997?
Answer 19. No. Funds provided to an IHA under the 1937 Act can be
used for any activity eligible under NAHASDA. An IHA (or its successor
entity) must honor existing contracts the IHA has entered into with
others prior to NAHASDA; however, an IHA may reprogram the use of funds
for eligible activities subject to written notification to HUD.
Question 20. Will Indian housing authorities (IHA), tribes or
tribally designated housing entities (TDHE) be eligible to apply for
assistance under any programs covered by the 1937 Act?
Answer 20. No. Section 501 of NAHASDA repealed Title II of the 1937
Act and made Titles I and III inapplicable to Indian housing after
September 30, 1997. Therefore, as of October 1, 1997, IHAs and tribes
are ineligible for funding for the following programs:
--New development
--Modernization (both the Comprehensive Improvement Assistance Program
and the Comprehensive Grant Program including the disaster/emergency
reserve)
--Operating subsidy
--HOPE for Public and Indian Housing Homeownership
--Indian Housing Childhood Development
--Section 8
Question 21. Will any operating subsidy be provided to IHAs after
October 1, 1997?
Answer 21. Yes. The Fiscal Year (FY) 1997 appropriation for
operating subsidy under Section 9 of the 1937 Act covers IHAs fiscal
years beginning (FYB) January 1, 1997 and ending December 31, 1997; FYB
April 1, 1997 and ending March 31, 1998; FYB July 1, 1997 and ending
June 30, 1998; and FYB October 1, 1997 and ending September 30, 1998.
IHAs are eligible for funds appropriated prior to FY 98, and therefore,
operating subsidy will be provided for the time periods stated in this
paragraph.
After September 30, 1997, financial assistance may not be provided
under the 1937 Act unless such assistance is provided from amounts made
available for FY 97 and pursuant to a commitment entered into before
September 30, 1997, therefore, all operating budgets for these periods
must have been approved prior to September 30, 1997 in order to be
eligible for funding. Operating budget adjustments or revisions after
October 1, 1997, cannot be processed.
[[Page 4084]]
Question 22. If an IHA has unobligated or unexpended funds in any
of the programs listed in Answer 19, how are they handled?
Answer 22. Any unobligated/unexpended funds which were approved for
new development, modernization, operations or HOPE can now be used for
any eligible NAHASDA activity. Section 8 contracts remain in effect and
the program is still governed by the 1937 Act and the existing contract
provisions.
Question 23. What is the definition of ``obligated'' as it relates
to the development and modernization programs?
Answer 23. Obligated means the cumulative amount of modernization
or development commitments entered into by the housing authority; i.e.,
contract execution for contract labor, materials or services; start and
continuation of physical work by force account labor; and start and
continuation of administrative expenses. Contract execution means
execution of the contract by both the housing authority and the
contractor. For force account work, all funds for a group of
sequentially-related physical work items are considered obligated when
the first work item is started, such as kitchen cabinet replacement
followed by kitchen floor replacement, but only where funds continue to
be expended at a reasonable rate. Where one force account physical work
item is started and is not sequentially related to other physical work
items, such as site improvements and kitchen remodeling, then only the
funds for the one physical work item started are considered obligated.
Question 24. Does an IHA need to enter into a new grant agreement
with HUD covering the use of existing 1937 Act grant funds?
Answer 24. In most instances, the requirement limiting use of grant
funds to eligible NAHASDA activities is self-implementing and does not
require a new grant agreement between HUD and the IHA. However, in
instances where a grant was never placed under annual contributions
contract or where a tribe or other organization becomes the successor
entity to an IHA, a grant agreement is required to obligate funds to
the IHA or to establish the tribe or other organization as the
successor entity to access IHA funds held by HUD.
Question 25. What Federal requirements apply after September 30,
1997 to funds provided under the 1937 Act?
Answer 25. Funds are subject to applicable Federal requirements
which include but are not limited to:
procurement requirements as listed under 24 CFR part 85 or
as specified in the grantee's HUD approved procurement policy;
environmental requirements as listed under 24 CFR part 58;
labor requirements of Sec. 104(b) of NAHASDA;
tenant or homebuyer selection requirements contained in
the grantee's HUD approved admissions policy or which comply with
Sections 203, 205 and 207(b) of NAHASDA;
financial controls requirements specified at 24 CFR Part
85.
Question 26. Do the Federal requirements listed in Question 25
apply to IHAs if they are not designated as a TDHE?
Answer 26. Yes.
Question 27. Are there any reporting requirements after September
30, 1997 for grant funds provided under the 1937 Act?
Answer 27. Yes. When a recipient includes funds provided to an IHA
in its IHP, reporting is included in the Annual Report and fiscal audit
requirements under NAHASDA.
When funds provided to an IHA are not included in a recipient's
IHP, reporting requirements in effect on September 30, 1997, continue
to apply until the close-out of the grant activity or until the IHA
notifies HUD and HUD acknowledges that the grant funds have been
reprogrammed for eligible activities which support the regular
operation of the IHA. This requirement applies only to categorical
grants provided for specific purposes such as development or
modernization grants and not to regular operating activities of the
IHA. Please note that the modernization reporting requirements have
been simplified and guidance has been provided to tribes, TDHEs, IHAs
and Area ONAPs.
Question 28. What audit requirements apply to grants funded under
the 1937 Act?
Answer 28. IHAs (or their successor entities) are responsible for
providing HUD with audits of program activities in accordance with OMB
Circulars A-128 and A-133 for any period prior to October 1, 1997, the
effective date of NAHASDA. Notice PIH 97-30 (HA) provides the
compliance supplement for annual audits of Indian housing authorities.
This requirement includes any overdue audits. Additionally, any grant
not included by the recipient in its IHP is subject to these audit
requirements for the grant activity until all grant activities are
completed and the grant is closed.
Question 29. What process does an IHA (or its successor entity)
follow to close grants originally funded with 1937 Act monies?
Answer 29. Where grant activities are essentially completed and the
IHA and HUD are in the process of closing the grant, the procedures for
establishing actual grant costs in effect as of September 30, 1997, for
the grant program are to be followed. This includes the requirement for
audit verification of expenditures and final financial settlement
between the IHA and HUD. Upon completion of the final financial
settlement, HUD will adjust its financial records to reflect the actual
cost of the grant.
Where grant activities are not completed, final settlement
procedures are dependent upon whether the NAHASDA recipient assumes
control of the grant funding. If the recipient does not assume
responsibility for funds provided by the 1937 Act, procedures for
closing grants are the same as stated in the above paragraph. Where the
NAHASDA recipient assumes control of the grant funding, close-out
procedures established for NAHASDA grants are to be followed even if a
significant portion of the grant activities are completed prior to
October 1, 1997.
Question 30. If an IHA wants to remain subject to the 1937 Act
after October 1, 1997, can it be converted to a PHA?
Answer 30. No. To be eligible for Indian Housing under the 1937
Act, tribal and state enabling legislation allowed for the creation of
housing authorities for the express benefit of Indians. IHAs that were
created for the benefit of Indians are ineligible for funding under the
1937 Act after October 1, 1997. They cannot choose to be converted to
PHAs.
Effect on ACCs
Question 31. Does the repeal of the 1937 Act terminate existing
Annual Contributions Contracts (ACCs)?
Answer 31. Section 502(b) of NAHASDA states that Indian housing
developed pursuant to an ACC ``shall not be subject to any provision of
[the 1937 Act] or any [ACC] or other agreement pursuant to such Act.''
Based on this language, existing ACCs are terminated with two
exceptions (bond financed projects and Section 8) which are explained
below in Questions 32 and 33.
Question 32. Can HUD continue funding for bond-financed projects in
which the bonds were secured by ACCs?
Answer 32. Section 507 of NAHASDA addresses bond-financed projects.
Annual contributions can be made by HUD, consistent with Section 507,
to continue payments to trustees on behalf
[[Page 4085]]
of holders of bonds issued, and outstanding, in connection with the
development of Indian housing projects.
Section 8
Question 33. Are Section 8 ACCs terminated?
Answer 33. No. Section 503 of NAHASDA governs the provision of
Section 8 rental assistance for units for which a contract was entered
into before October 1, 1997. This section states that after September
30, 1997, financial assistance for rental housing assistance may not be
provided to an IHA or TDHE, unless such assistance is provided pursuant
to a contract for such assistance before October 1, 1997. Any such
assistance shall be governed by the provisions of the 1937 Act and the
provisions of such contract.
In other words, if an existing Section 8 contract does not expire
until after October 1, 1997, funding will continue to be provided until
the expiration date of the contract. This may be as late as fiscal year
(FY) 2000. The program is to be operated in accordance with the
existing ACC and HAP contract.
Question 34. What will happen to any remaining Section 8 operating
reserves after the Section 8 contracts expire?
Answer 34. Section 8 operating reserves will remain with the entity
administering the Section 8 program. Once the contract expires, the
reserves shall be used for eligible activities under NAHASDA.
Question 35. What will happen to any remaining Section 8 program or
project reserves?
Answer 35. Section 8 program or project reserves are those funds
held by HUD to fund monthly housing assistance payments. When the
contract expires, any remaining funds will remain with the Department.
Question 36. If a Tribe or TDHE chooses not to continue a Section 8
program after the current contract expires, is there a requirement to
notify program participants of its intent to discontinue the program?
Answer 36. Yes, IHAs administering Section 8 rental certificates
and rental voucher programs for which the ACC term will expire after
September 30, 1997, must immediately notify Section 8 participants
(including families that have exercised the portability provisions of
the Section 8 program and have not been absorbed by the receiving
housing authority) that their Section 8 assistance will end upon
expiration of the ACC in accordance with the Housing Assistance Payment
(HAP) contract, part B, Subpart 6, Paragraph iv.
Owners of Section 8 moderate rehabilitation units must also be
notified that after September 30, 1997, HAP contracts will not be
renewed upon the expiration of their current HAP contracts. Owners
should be advised that they must provide written notice of the
impending HAP contract expiration to each Section 8 family 180 days
before the contract expires. A copy of the written notice must also be
sent to the appropriate housing authority in accordance with Section
8(c)(9) of the 1937 Act, as amended. See PIH Notice 97-50, ``Expiration
of Section 8 Annual Contributions Contracts between the Department of
Housing and Urban Development and Indian housing authorities'' dated
September 19, 1997, for further guidance.
Programs Under the Cranston-Gonzalez National Affordable Housing
Act or the Stewart B. McKinney Homeless Assistance Act
Question 37. Will IHAs or tribes be eligible for programs funded
under the Cranston-Gonzalez National Affordable Housing Act or the
Stewart B. McKinney Homeless Assistance Act?
Answer 37. No. As of October 1, 1997, IHAs or tribes are no longer
eligible for the following programs:
--Youth Sports
--Youthbuild
--HOME (Although tribes or IHAs are not eligible as direct grantees for
HOME funds, States may choose to fund them if the needs of the tribes
are reflected in the State's Consolidated Plan.)
--Housing Assistance for the Homeless which includes: Comprehensive
Homeless Assistance Plan; Emergency Shelter Grants; Supportive Housing
Programs; Safe Havens for Homeless Individuals Demonstration Program;
Shelter Plus Care; Rural Homeless Housing Assistance; and Innovative
Homeless Demonstration.
Question 38. If an IHA or tribe has unobligated or unexpended funds
in any of the programs listed in Question 37, how are they handled?
Answer 38. Youth Sports, Youthbuild, HOME and the Housing
Assistance for the Homeless Programs continue to be governed by the
provisions of the statutes in effect at the time of funding. The
program shall continue to be operated under existing program
provisions. After completion of the funded activities, the grants will
be closed out in accordance with their program requirements and grant
agreements.
Question 39. What will happen to the Drug Elimination Program?
Answer 39. Section 704 of NAHASDA amends the Public and Assisted
Housing Drug Elimination Act of 1990 to exclude IHAs as eligible
applicants. However, TDHEs are now eligible applicants. The language in
NAHASDA does not include tribes as eligible applicants.
Other Programs and Funds
Question 40. Will tribes be eligible for the Economic Development
and Supportive Services (EDSS) Program?
Answer 40. The EDSS program is created by annual appropriations.
The appropriation language currently makes IHAs and public housing
agencies eligible for this program. Continued eligibility for IHAs will
depend on future appropriation language. The language will need to be
changed to include tribes and TDHEs. For those with existing EDSS
grants, the program should continue to be operated under existing
program provisions.
Question 41. Is the same true for the Tenant Opportunity Program
(TOP) as for the EDSS Program under Question 40?
Answer 41. Yes.
Question 42. What happens to rental and homeownership operating
reserves, mutual help equity accounts under the Mutual Help
Homeownership Opportunity Program, earned home payment accounts under
the Turnkey III programs and proceeds from the sale of homeownership
units?
Answer 42. These funds can now be used for any eligible NAHASDA
activity subject to any conditions imposed by the contract or agreement
between the IHA and the homebuyer.
Question 43. Do tenant leases and homeownership agreements for the
Mutual Help and Turnkey III Programs remain in effect?
Answer 43. Yes. For the rental program, leases remain in effect
until the lease term expires. At that time, the tribe, TDHE, or IHA
operate the units under the regulations governing NAHASDA. For
homeownership programs, the agreements remain in effect until the
contract term expires or modifications may be made to the agreement if
these changes are acceptable to both parties. Modifications to the
agreement must be in accordance with NAHASDA.
Question 44. What happens to tenant accounts receivables?
Answer 44. Since the terms of the rental leases and homeownership
agreements remain in effect, the tenant accounts receivable are still
due based on current program requirements. New policies regarding
payment requirements for units developed under NAHASDA can be adopted
by the tribe or TDHE.
[[Page 4086]]
Other Pre-NAHASDA Requirements
Question 45. What happens to the current regulations governing the
Indian housing program, 24 CFR 950?
Answer 45. As of October 1, 1997, the regulations are cancelled.
Question 46. What cash management and investment policies and
procedures are in effect as of October 1, 1997?
Answer 46. Current procedures outlined in PIH Notice 96-33 (HA),
extended by Notice 97-41 (HA) dated July 21, 1997, titled ``Required HA
Cash Management and Investment Policies and Procedures'' will continue
to apply until the effective date of the NAHASDA final regulation.
Question 47. Are IHAs responsible for resolving audit findings
which were issued pursuant to activities prior to October 1, 1997?
Answer 47. Yes. Audit findings are open until closed. Findings that
are based on operating policies or procedures can be resolved between
an IHA (or its successor entity) and HUD by identifying such findings
and agreeing that the correction of deficiencies is no longer required
by statute or regulation. Findings that are not based on operating
policies or procedures such as instances of fraud, criminal activities
or ineligible program activities including repayment of any outstanding
amounts due the Department, must be resolved between the IHA (or its
successor entity) and HUD before the audit finding can be closed.
Question 48. Will financial statements be required when the IHA's
FY ends?
Answer 48. The requirement to submit financial statements ended on
September 30, 1997.
Question 49. Will the tribe or TDHE be required to submit the
Multifamily Tenant Characteristic Reports, HUD 50058, as of 10-1-97?
Answer 49. As of October 1, 1997, the HUD 50058 does not need to be
submitted for the rental and homeownership programs. The form is still
required for the Section 8 program until the contract term expires.
Question 50. Will LOCCS access to funds be changed for IHAs on
October 1, 1997?
Answer 50. No. LOCCS access to funds will be modified only if a
recipient assumes responsibility for a grant. At that time, HUD must be
notified of the change in responsibility so that access to the grant
funds can be provided to the recipient.
LOCCS provides for the disbursement of funds by certain line items
contained in program budgets. Since budgets are no longer required, the
Area ONAP will enter the entire grant amount under account 1500 when
they establish a project in LOCCS. This will obviate the need to
provide budget information to the Area ONAP. For grants already
established in LOCCS, the grantee can request the Area ONAP to transfer
funds to line 1500 to enable access to the funds. The request to
transfer funds can be in writing or by telephone.
Question 51. If an IHA is declared ``high risk'' under the
provisions of 24 CFR 950.135, will this designation continue as of
October 1, 1997?
Answer 51. No. There is no basis or authority for allowing the
designation of ``high risk'' to continue because this designation was
based on failure to comply with the 1937 Act, implementing regulations
or the ACC. Regulations are being developed under NAHASDA which will
outline corrective action under the new program.
Question 52. Are cooperation agreements transferable to a successor
agency without requiring any action on the agreement by the local
government or the successor agency?
Answer 52. Cooperation agreements may be transferable to a
successor agency by their terms. However, it is also possible that the
agreement is not transferable in which case a new agreement would have
to be negotiated. Generally, if the current IHA becomes the TDHE, a new
agreement is not needed because the designation of the IHA as a TDHE
does not create a new legal entity. However, an IHA's cooperation
agreement does not automatically become the Tribe's.
New Program Under NAHASDA
Question 53. What is the IHP submission deadline?
Answer 53. On January 27, 1997, a transition notice was published
in the Federal Register which established the original IHP deadline
submission date of June 1, 1997. Based on public comment, this date was
later amended to extend the deadline to November 3, 1997. With the
publication of the proposed rule, many commenters indicated that the
deadline did not provide sufficient time to prepare an IHP. Therefore,
it is unreasonable to expect a recipient to submit a plan prior to
publication date of the program regulations.
Based on the above, this transition notice is establishing new IHP
submission dates for Fiscal Year 1998 only. An IHP can be submitted no
earlier than the publication date of the final regulations implementing
NAHASDA and no later than July 1, 1998. The July 1, 1998, date is
necessary in order to provide for a 60-day review period by Office of
Native American Program (ONAP) field staff and reservation of funds
prior to September 30, 1998. The final regulations will establish IHP
submission dates for all future years.
Question 54. Will ONAP develop a model IHP as an example or guide
for tribes or TDHEs? Is so, will it be available in a diskette format?
Answer 54. A draft IHP format has been developed and submitted to
the Office of Management and Budget (OMB) for approval. This form was
also mailed to all tribes and IHAs in August 1997.
To assist with the submission of the IHP, the Department is
offering three ways in which to submit the IHP. The first is via the
Internet. It is anticipated that this will be the easiest method and it
will also provide you with on-line resources such as reviewing plan
status. You may also develop your plan using a diskette which contains
a template of the IHP in a Microsoft Word 6.0 format. Once completed,
this diskette is submitted to the Area ONAP. The diskette and internet
instructions were sent to all eligible recipients on July 24, 1997. Of
course, a hard copy of the plan will also be accepted for the first
several years of the program.
Question 55. Are costs incurred prior to the receipt of a FY 1998
Indian Housing Block Grant (IHBG) which are related to the development
and preparation of an IHP (including the challenge of data) eligible
for reimbursement from an IHBG?
Answer 55. Yes. Under the provisions of paragraph 32 of OMB
Circular A-87, pre-award planning and administrative costs incurred by
a recipient which are directly related to the development and
preparation of its IHP (including the challenge of data) will be
considered eligible IHBG expenditures under the following conditions:
(a) The costs would have been allowable if they had been incurred
after the date of the award of the IHBG; and,
(b) The costs do not exceed more than 20% of the recipient's
anticipated FY 1998 IHBG (or such other amounts approved in the IHP).
Question 56. Can an IHA which currently represents more than one
tribe be designated by more than one tribe as their TDHE?
Answer 56. Yes.
Question 57. If a TDHE represents more than one tribe, do
individual IHPs need to be submitted?
Answer 57. If a TDHE has been designated by more than one Indian
[[Page 4087]]
tribe, the TDHE can submit a separate IHP for each Indian tribe or it
may submit a single IHP that covers two or more tribes. However, the
IHP must contain a separate certification in accordance with Section
102(d) of NAHASDA and the IHP Tables when requested by such tribes.
Question 58. What happens if a tribe had two IHAs as of September
30, 1996?
Answer 58. Tribes which had established and were operating two IHAs
as of September 30, 1996, under the 1937 Act shall be allowed to form
and operate two TDHEs under NAHASDA. Nothing in this section shall
affect the allocation of funds otherwise due to a tribe under the
formula.
Question 59. Who is considered as a tribe in Alaska?
Answer 59. The definition of Federally recognized tribe in NAHASDA
reads: ``The term `federally recognized tribe' means any Indian tribe,
band, nation, or other organized group or community of Indians,
including any Alaska Native village or regional or village corporation
as defined in or established pursuant the Alaska Native Claims
Settlement Act, that is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians pursuant to the Indian Self-Determination and
Education Assistance Act of 1975.''
Authority: Section 106 of the Native American Housing Assistance
and Self-Determination Act of 1996 (NAHASDA) (Pub. L. 104-330,
approved October 26, 1996).
Dated: January 15, 1998.
Kevin Emanuel Marchman,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 98-1939 Filed 1-26-98; 8:45 am]
BILLING CODE 4210-33-P
