[Federal Register Volume 64, Number 203 (Thursday, October 21, 1999)]
[Rules and Regulations]
[Pages 56844-56867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27302]
[[Page 56843]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 903
Public Housing Agency Plans; Final Rule
Federal Register / Vol. 64, No. 203 / Thursday, October 21, 1999 /
Rules and Regulations
[[Page 56844]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 903
[Docket No. FR-4420-F-05]
RIN 2577-AB89
Public Housing Agency Plans
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule.
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SUMMARY: On February 18, 1999, HUD published an interim rule
implementing section 511 of the Quality Housing and Work Responsibility
Act of 1998. Section 511 introduces the public housing agency (PHA)
plans--a 5-Year Plan and an Annual Plan. Through these plans a PHA will
advise HUD, its residents and members of the public of the PHA's
mission for serving the needs of low-income and very low-income
families, and the PHA's strategy for addressing those needs. This rule
makes final the policies and procedures described in the February 18,
1999 interim rule, taking into consideration the public comments
received on the interim rule.
DATES: Effective Date: November 22, 1999.
FOR FURTHER INFORMATION CONTACT: For further information contact Rod
Solomon, Deputy Assistant Secretary, Office of Policy, Program and
Legislative Initiatives, Office of Public and Indian Housing,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Room 4116, Washington, DC 20410; telephone (202) 708-0713 (this is not
a toll-free number). Persons with hearing or speech impairments may
access that number via TTY by calling the Federal Information Relay
Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. The February 18, 1999 Interim Rule
On February 18, 1999 (64 FR 8170), HUD published an interim rule to
implement section 511 of the Quality Housing and Work Responsibility
Act of 1998 (Public law 105-276, approved October 21, 1998; 112 Stat.
2461) (referred to as the ``Public Housing Reform Act''). Section 511
of the Public Housing Reform Act, which added a new section 5A to the
U.S. Housing Act of 1937 Act (42 U.S.C. 1437 et seq; see 1437c-1),
introduces the public housing agency (PHA) plans--a 5-Year Plan and an
Annual Plan. Through these plans a PHA will advise HUD, its residents
and members of the public of the PHA's mission for serving the needs of
low-income and very low-income families, and the PHA's strategy for
addressing those needs.
The 5-Year Plan describes the mission of the PHA and the PHA's long
range goals and objectives for achieving its mission over the
subsequent 5 years. The Annual Plan provides details about the PHA's
immediate operations, program participants, programs and services, and
the PHA's strategy for handling operational concerns, residents'
concerns and needs, programs and services for the upcoming fiscal year.
Both planning mechanisms (the 5-Year Plan and the Annual Plan) require
PHAs to examine their existing operations and needs (particularly the
needs of the families they serve) and to design long-range and short-
range strategies to address those needs.
The February 18, 1999 interim rule established the initial
procedures and requirements for development, submission and
implementation of the PHA plans. The interim rule became effective on
March 22, 1999, and is codified at 24 CFR part 903 (entitled ``Public
Housing Agency Plans''). The preamble to the February 18, 1999 interim
rule described in detail the provisions of 24 CFR part 903. This
preamble to the final rule does not repeat that description.
B. Electronic Template for the PHA Plans
In the preamble to the February 18, 1999 interim rule, HUD
announced that it would develop software and eventually require
electronic submission of the PHA Plan that would provide uniform
formats and layouts. On July 30, 1999, HUD announced the availability
of the PHA Plan Template, including instructions and supplemental
guidance on preparation and submission of PHA Plans. The template is
currently provided as a word processing document that will be
downloaded by PHAs, completed, and submitted to HUD via the Internet.
HUD's goal is to quickly transform the PHA Plans into an on-line
submission system that will further facilitate streamlined PHA
submissions to HUD. By using the electronic template, PHAs will provide
responses to a number of structured questions designed to provide the
most relevant data regarding local operations in a concise manner.
The PHA Plan template also serves as a central reference point for
very detailed information about the PHA's operations and activities.
This is accomplished through the template's listing of required
``supporting documents'' that must be available locally for public
review and serve as a resource library for the community, while
eliminating the need for extensive submissions to HUD. The PHA Plan
template is available at HUD's homepage website at http://www.hud.gov/
pih/pha/plans/phaps-home.html. In keeping with HUD's move to an
electronic government, the PHA Plan website will become the primary
source of information and resources regarding the PHA Plans. In
addition, this PHA Plans website will serve as the location from which
agencies download the electronic PHA Plan template for their use in
developing the Plans. Once completed and ready for submission, PHAs
will transmit the electronic PHA Plans to HUD via the HUD internet
site. After HUD approval, these Plans will be placed on display on this
same webpage.
C. The September 21, 1999 Amendments to the Interim Rule
On September 21, 1999 (64 FR 51045), HUD published a rule making
two amendments to the February 18, 1999 interim rule. First, the
September 21, 1999 rule amended Sec. 903.3 to extend the due date for
initial PHA plan submissions made by PHAs with fiscal years beginning
on January 1, 2000. Specifically, the September 21, 1999 rule provides
that these PHAs must submit their first PHA plans to HUD by December 1,
1999. Second, the September 21, 1999 rule amended Sec. 903.23 to add a
new paragraph (c) which provides that, for purposes of the submission
of the first PHA plans, the date on which the PHA submits its plan will
be considered to be the submission due date. This final rule reflects
the changes made by the September 21, 1999 document.
Section II of this preamble highlights the significant changes made
to the February 18, 1999 interim rule at this final rule stage. Section
III of the preamble discusses the basic objectives of the PHA planning
process. Section IV of the preamble discusses the participation of
PHAs, residents, and other groups in this rulemaking through public
forums held on this rule. Section V of the preamble discusses the
issues raised on the rule by the groups that attended four public
forums and the issues raised by the members of the public that
commented on the rule during the 60-day public comment period.
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II. Significant Changes Between the February 18, 1999 Interim Rule
and This Final Rule
This rule makes final the policies and procedures contained in the
February 18, 1999 interim rule, and takes into consideration the public
comments received on the interim rule. The significant changes made to
the interim rule are described below.
In Sec. 903.1 (What are the Public Housing Agency Plans?)
paragraph (c) is revised in this rule to note that HUD also may
prescribe the format of certain required attachments to be submitted
with the PHA Plan or documents to be made available locally, but not
submitted.
Section 903.3 (When Must a PHA Submit the Plans to HUD?)
reflects the changes that were made by the September 21, 1999 rule,
discussed in Section II.B of this preamble.
In Sec. 903.7 (What Information Must a PHA Provide in the
Annual Plan?), HUD removed the language in the introductory paragraph
that lists the information that need not be included in the first
Annual Plan. This paragraph is revised in this final rule to provide
that HUD will advise PHAs by separate notice of the information that
must be included in the first Annual Plan, as well as any special
instructions or directions that may be applicable to first year filing
of the Annual Plan.
In this introductory paragraph, HUD also has added language to
clarify that the Annual Plan must be consistent with the goals and
objectives of the 5-Year Plan.
In Sec. 903.7(a)(2), HUD added language to require PHAs to make
reasonable efforts to identify the housing needs of each group listed
in paragraph (a)(1) of this section based on information provided by
the applicable Consolidated Plan, information provided by HUD, and
generally available data.
In Sec. 903.7(b) (statement of financial resources), HUD removed
the word ``significant'' to describe resources that PHAs must list, and
revised this language to provide that PHAs must list, by general
categories, their resource commitments, such as PHA operating, capital,
and other proposed resources.
In Sec. 903.7(c) (statement of the PHA's policies that govern
eligibility, selection and admissions), HUD has added language to
paragraph (c)(2)(i) that simplifies and clarifies the provisions
regarding deconcentration of poverty and income-mixing. Most
importantly, HUD has clarified that the initiative applies to all
family (general occupancy) developments; and that with respect to the
identification of families, developments and buildings as higher income
or lower income, PHAs that use a dividing line of the average income in
these developments will be considered to be in compliance with the law.
With respect to the actions then to be taken, PHAs may offer
incentives to eligible families that would help accomplish the
deconcentration and income mixing objectives. Skipping of a family on a
waiting list to reach another family with a lower or higher income is
required, provided that such skipping is uniformly applied. Such
skipping must be adopted by a PHA to the extent necessary to implement
the statute's requirements. Skipping families is consistent with site-
based and community-wide waiting lists. Admissions policies related to
deconcentration do not impose specific quotas.
PHAs may consider a number of approaches as they examine designing
an admissions policy to achieve the goals of deconcentration and income
mixing, such as the use of skipping over certain families on waiting
lists based on incomes; the establishment of certain preferences such
as worker preferences; appropriate affirmative marketing efforts;
additional applicant consultation and information; provision of
additional supportive services and amenities; and rent incentives
authorized by the Act. Of course, PHA policies must be in writing and
followed consistently, and must affirmatively further fair housing.
In Sec. 903.7(c)(1)(A), HUD has revised this paragraph to provide
that the MTCS occupancy data upon which the PHA must assess changes in
racial, ethnic or disability-related tenant composition, has been
confirmed to be complete and accurate by an independent audit or is
otherwise satisfactory to HUD.
In Sec. 903.7(c)(1)(B), HUD revised this paragraph to provide that
at least every three years (as opposed to biannually as required by the
interim rule), PHAs must use independent testers or means satisfactory
to HUD to assure that the site-based waiting list is not being
implemented in a discriminatory manner.
In Sec. 903.7(e) (statement of the PHA's operation and management),
HUD revised paragraph (e)(1) to reflect that PHAs need only list (not
describe) their rules, standards and policies that govern maintenance
and management of their housing.
In Sec. 903.7(g) (statement of the capital improvements needed),
HUD revised the last sentence of this paragraph to state that PHAs
receiving capital funding are required to include 5-year plans covering
large capital items. This will both facilitate basic capital planning
and asset management, and allow more flexible use of capital funds by
increasing the number of items that have been subject to public review.
In Sec. 903.7(h), (i), (j), and (k) which concern, respectively,
statements pertaining to demolition and/or disposition, designated
housing, required or voluntary conversion, and homeownership programs,
HUD added language to each of these paragraphs to clarify that the
application and approval processes discussed in these paragraphs are
separate application and approval processes from the PHA Annual Plan
submission and approval process.
In Sec. 903.7(h), HUD has added a new paragraph concerning
submission of an interim plan for demolition/disposition that was
previously described in the preamble to the February 18, 1999 interim
rule.
In Sec. 903.7(l) (statement of the PHA's community service and
self-sufficiency programs), HUD added language that requires the PHA to
address any cooperation agreements, as described by section 12(d)(7) of
the 1937 Act that the PHA has entered into or plans to enter into. This
statutory section requires the PHA to make best efforts to enter into
cooperation agreements with State, local, and other agencies that
provide assistance to target supportive services to covered families
and provide information to facilitate administration of requirements
for community service and tying rents to welfare compliance.
In Sec. 903.7(m), HUD revised paragraph (1)(iv) of this section to
clarify that if a PHA expects to receive public housing drug
elimination grant funds, the information required to be included by the
Public Housing Drug Elimination Program regulations must be submitted
with the PHA Plan.
In Sec. 903.7(q) (statement of asset management), HUD clarifies
that the PHA need not repeat information concerning asset management
that is covered by other plan components.
In Sec. 903.7(r) (additional information to be provided), HUD
removed the requirement to submit a Table of Contents and Executive
Summary. HUD's template eliminates the necessity of a separate
requirement in the
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regulation for a table of contents or executive summary.
In Sec. 903.7(r), HUD adds language to provide that a PHA must
identify in the Annual Plan the basic criteria that a PHA will use to
determine what constitutes a ``substantial deviation'' from the 5-Year
Plan, and a ``significant amendment or modification'' to either the 5-
Year Plan or Annual Plan for purposes of Sec. 903.21. HUD also added
language to provide that a PHA must include in the PHA plan such other
information as HUD may request. HUD will advise PHAs of any additional
information through advance notice.
In Sec. 903.9 (Must a Troubled PHA Include Additional
Information in its Annual Plan?), HUD has added a reference to the
regulations of the Public Housing Management Assessment Program (PHMAP)
(the predecessor to HUD's new assessment system, the Public Housing
Assessment System (PHAS)) in recognition that some PHAs may have been
designated as troubled under the PHMAP regulations (24 CFR part 901).
In Sec. 903.11 (Are Certain PHAs Eligible to Submit a
Streamlined Annual Plan?), HUD added, in paragraph (b)(2), a cross
reference to section 6(j)(2) of the 1937 Act that addresses PHAs at
risk of being troubled.
In Sec. 903.13 (What Is a Resident Advisory Board and What
Is Its Role in Development of the Annual Plan?), HUD revised paragraph
(a)(1) to more closely track the statutory language. In paragraph
(a)(2), HUD added language concerning the reasonable resources to be
provided to Resident Advisory Boards by PHAs. In HUD's Capital Fund
Formula proposed rule, published on September 14, 1999 (64 FR 49924),
HUD advised in the preamble to this proposed rule that it would clarify
in the PHA Plan final rule that reasonable resources for the Resident
Advisory Boards must provide reasonable means for them to become
informed on programs covered by the PHA Plan, to communicate in writing
and by telephone with assisted families and hold meetings with those
families, and to access information regarding covered programs on the
internet, taking into account the size and resources of the PHA.
In Sec. 903.13(b)(1), HUD provides an exception to the requirement
to appoint a jurisdiction-wide resident council. This language as
revised provides that if a jurisdiction-wide resident council exists
that complies with the tenant participation regulations in 24 CFR part
964, the PHA shall appoint the jurisdiction-wide resident council or
its representatives as the Resident Advisory Board, except that members
shall be added or another Resident Advisory Board formed to provide for
reasonable representation of families receiving tenant-based assistance
where necessary.
In Sec. 903.13(b)(2), HUD clarifies that a tenant-based assistance
program of significant size is one that is 20% or more of the PHA's
assisted households.
In Sec. 903.13(c), HUD clarifies that the PHA must consider the
recommendations of the Resident Advisory Board or Boards in preparing
not only the final Annual Plan but also any significant amendment or
modification to the Annual Plan. Section 511(g)(2) of the Public
Housing Reform Act imposes this requirement.
In Sec. 903.15 (What is the Relationship of the Public
Housing Agency Plans to the Consolidated Plan), HUD has revised this
section to allow PHAs, subject to HUD approval, to change their fiscal
years to encourage coordination with local Consolidated Plans.
For Sec. 903.17, HUD changed the title of this section to
read ``What is the Process for Obtaining Public Comment on the Plans?''
In paragraph (b) of this section, HUD clarifies that not only the
proposed PHA plans, but all attachments and documents related to the
plans must be available for review by the public. HUD also added a new
paragraph (c) to require PHAs to conduct reasonable outreach activities
to encourage broad public participation in the PHA plans.
In Sec. 903.21, HUD added a new paragraph (b) to clarify that any
significant amendment or modification to a PHA Plan is subject to the
requirements of Secs. 903.13, 903.15, and 903.17. As noted earlier,
this requirement is consistent with section 511(g)(2) of the Public
Housing Reform Act.
In Sec. 903.23, HUD added a new paragraph (b)(4) to clarify that a
plan deemed approved as a result of HUD's failure to respond by the
75th day after the PHA's submission does not apply to the plan of a
troubled PHA. This provision is consistent with section 511(i)(4)(A) of
the Public Housing Reform Act. In paragraph (d) of this section, HUD
added language to clarify that not only the approved PHA plan, but all
attachments and documents related to the approved plan must be
available for review by the public.
In addition to these changes, HUD made editorial changes to certain
provisions of the regulation.
III. The Goals of the PHA Plans--Comprehensive Planning; Local
Accountability; Reduction in Submissions; and Increased Flexibility
The PHA plan concept is based on the highly successful consolidated
planning process used for HUD's community planning and development
programs. Like the Consolidated Plan for CPD programs, the PHA plans
provide a planning mechanism by which a PHA can examine its long-range
needs and its short-range needs, specifically the needs of the families
that it serves, and design both long-term strategies and short-term
strategies for addressing those needs. Like the Consolidated Plan, the
PHA plans involve consultation with affected groups in the development
of the plan. Through this planning mechanism, PHAs will make more
efficient use of Federal assistance, more effectively operate their
programs, and better serve their residents.
HUD has strived, in developing its PHA plan regulations, to keep
the plan submission requirements complete but simple. A significant
step in meeting this objective is HUD's issuance of the electronic
template for the PHA Plans (as discussed earlier in this preamble). The
electronic template with its ``question and answer'' format provides a
comprehensive yet easy mechanism for PHAs to record and submit the
information required for the PHA Plans.
To the extent practicable, the PHA Annual Plan will eventually
consolidate all PHA information that is required to be submitted under
existing HUD planning and reporting requirements into one document. The
objective is for the PHA Annual Plan to eventually supersede submission
requirements currently imposed on PHAs under various HUD programs. For
example, see HUD's September 14, 1999 final rule regarding formula
allocation for the Public Housing Drug Elimination Program (64 FR
4990), which provides that PHAs must submit their drug elimination
plans with their PHA Annual Plan. In addition, the process for
distributing capital funds is being combined with the PHA Plan process.
(HUD's proposed rule on the allocation of capital funds was published
on September 14, 1999 at 64 FR 49924.) HUD intends that the new PHA
planning process, to the extent practicable, will allow for a PHA to
plan for all of its program needs based on the PHA's fiscal year. This
will assist PHAs in planning in a comprehensive manner and will
expedite the release of public housing funds.
Further, as part of the HUD 2020 Management Reform effort, HUD is
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moving toward electronic reporting for all required submissions under
its programs. In addition to making submissions easier for its program
participants (paper reduction), electronic data assists HUD and its
program partners to exchange information more easily and to monitor
activity, note trends in programs and the performance of the program
participants (weaknesses and strengths) and better serve the families
and communities that HUD programs are designed to serve. HUD believes
that its electronic template for the PHA Plans is a significant first
step in achieving these objectives.
IV. Public Participation in the Development of this Final Rule
Section 511 of the Public Housing Reform Act requires that before
issuance of a final rule, HUD seek the recommendations on
implementation of the PHA plans from organizations representing (1)
State or local public housing agencies; (2) residents, including
resident management corporations; and (3) other appropriate parties.
Section 511 also requires HUD to convene not less than two public
forums at which the persons or organizations making recommendations may
express their views concerning the proposed disposition of their
recommendations. In addition to the general solicitation of public
comments on the February 18, 1999 interim rule, HUD specifically
invited recommendations on implementation of the PHA plans from the
three groups specified in the statute, and included under the third
category, representatives of affected communities (See preamble
discussion of the February 18, 1999 interim rule at 64 FR 8170).
In order to ensure broad public participation in this rulemaking,
HUD held four public forums to discuss implementation of the PHA plans.
These forums were held in Atlanta, Georgia, on May 4, 1999; Omaha,
Nebraska, on May 19, 1999; Syracuse, New York, on June 28, 1999; and
Washington, DC, on July 28, 1999. The final forum in Washington, DC
allowed persons to participate via telephone from 33 sites around the
country. At each of the forums, helpful recommendations and suggestions
were made by the forum participants, issues were discussed and ideas
exchanged on the PHA planning process, specifically the requirements
established by the February 18, 1999 interim rule. Consistent with the
statutory requirements, HUD advised the forum participants of its
proposed disposition of the participants' recommendations when HUD had
formulated a proposed disposition of a specific view or recommendation
offered. For certain issues, HUD was unable to offer the forum
participants a proposed disposition, because the issues required
further deliberation by HUD, but HUD discussed with the participants
the considerations involved in HUD's decisionmaking process.
Section V of this preamble, which immediately follows, provides a
summary of the comments, issues and recommendations made on the
February 18, 1999 interim rule, those made at the public forums, and
those provided as written comments during the 60-day comment period on
the rule.
V. Discussion of Public Comments Raised on the February 18, 1999
Interim Rule
The public comment period on the February 18, 1999 interim rule
closed on April 19, 1999. Written comments were submitted by PHAs,
organizations representing PHAs, legal services organizations, public
interest/housing policy organizations, and various other organizations
and individuals. In addition to the written comments, HUD also received
comments and suggestions at the four public forums held throughout the
country.
This section of the preamble presents a summary of the significant
issues raised by the public commenters on the February 18, 1999 interim
rule, both through written submission of comments and at the forum. The
heading ``Comment'' states the comment or comments made by the
commenter or commenters, and the heading ``Response'' presents HUD's
response to the issue or issues raised by the commenters.
1. General Comments
Comment. HUD should view the planning process and the Plan itself
as a mechanism for PHAs to express local choices. HUD should not use
the Plan as a tool to impose substantive requirements on PHAs.
Response. HUD's views of the PHA planning process are consistent
with those of the commenters. HUD views the PHA planning process as a
mechanism for PHAs to express local choices consistent, however, with
Federal statutory requirements. The requirements imposed by HUD on PHAs
with respect to the PHA planning process are those required to be
imposed by statute. The substantive requirements imposed on PHAs are
those imposed through the statutes and regulations that govern the
various HUD programs in which PHAs participate. The statutory and
regulatory requirements governing the PHA planning process are directed
to compiling basic information about PHA operations, missions and
goals, and making that information available to HUD and to the public.
Comment. In order to ensure accuracy, HUD needs to work with PHAs
to ensure software compatibility. HUD needs to address the problems
with the MTCS and Community 2020 software packages, which are
burdensome to use. HUD should provide PHAs with software early in the
process. PHAs should be able to request local HUD offices to provide
various MTCS printouts to help with preparation of the Plan.
Response. HUD is cognizant of PHA concerns about problems with the
MTCS software and Community 2020 software. HUD has been working with
PHAs to minimize problems and increase MTCS reporting. Based on data
received through the end of September 1999, MTCS reporting is as
follows: tenant-based section 8 is reported at 95%; public housing at
86%; and overall reporting at 88%. As with all new software products,
problems will be uncovered and have been uncovered with respect to HUD
2020 software and MTCS but HUD is working to eliminate these problems.
With respect to local assistance, HUD's local Public and Indian Housing
offices are available to offer all needed assistance to PHAs.
Comment. It will be difficult to complete the Plan without
additional funding.
Response. The PHA Plans provide for compilation in one location
information that PHAs already have been required to put together under
various other program regulations. By requiring, however, that this
information be put together one time annually in one source, the
administrative burden placed on PHAs will be decreased rather than
increased. While there may be increased burden during the first year of
PHA Plan submissions, once the first Plans are submitted the subsequent
submissions should be prepared and submitted with significantly less
burden. Additionally, HUD believes that the electronic template for the
PHA Plans issued July 30, 1999, helps to reduce administrative burden
in the preparation and submission of the PHA Plans. As requested by
commenters HUD has made (and plans to continue to make) the PHA Plan
software available at no cost.
Comment. HUD's decision to maintain separate submission and
approval processes for activities such as demolition, disposition,
conversion to
[[Page 56848]]
vouchers, designation, and public housing homeownership programs seems
to contradict the Public Housing Reform Act's mandate to deregulate and
consolidate. By creating the PHA Plan process, Congress intended to
dramatically limit HUD's traditional discretionary powers to review and
approve these specific programs. Maintaining submission and approval
processes separate from the PHA Plan thwarts this intent.
Response. The PHA Plan regulations reference separate submission
and approval processes for various activities such as demolition,
disposition, and conversion to vouchers because the Congress did not
provide for a common approval process in its enactment of the PHA Plan,
and in particular provided for different approval standards for these
activities. PHAs are encouraged to coordinate public consultation
processes for these applications and simultaneously submit such Plans,
but the approval processes remain separate.
Comment. The currently available census data is too old. Annual
Plans should not be required until new census data is available in
2002.
Response. HUD has no statutory authority to defer submission of
Annual Plans until the year 2002. HUD recognizes that the census data
is not the optimum planning mechanism as the decade draws to a close;
nevertheless it remains the official census data. To the extent that
PHAs need to refer to census data, which is limited, PHAs can continue
to use this data.
Comment. ``One size fits all'' approach of the PHA Plan does not
work well for PHAs because of differences in size, number, and type of
programs.
Response. HUD believes that the PHA planning mechanism provides
sufficient flexibility for PHAs to make the necessary adjustments given
the PHA's size, number and type of programs. This flexibility is also
reflected in HUD's electronic template for the PHA Plans.
Comment. HUD has added oversight in the rule that is beyond what
the Public Housing Reform Act requires.
Response. HUD's oversight of PHA programs and activities is
consistent with the Public Housing Reform Act and the statutes and
regulations governing the individual HUD programs covered by the PHA
Plan.
Comment. HUD should set parameters for who can sue a PHA over a
Plan.
Response. HUD has no authority to limit legal action in connection
with a PHA Plan.
Comment. Fair housing considerations should be addressed in all
aspects of the Plan. The final rule should specifically direct PHAs to
comply with fair housing laws when making choices related in the Plan.
Response. Fair housing considerations are an important part of the
PHA planning process and are addressed in the regulation. Please see
Sec. 903.7(o) the PHA certification requirement and the PHA's
obligation to affirmatively further fair housing.
Comment. All policies should be in the Plan, not just discretionary
ones. The purpose of the Plan is to provide a framework for local
accountability. The Plan must be complete. All material must be
included, even material already submitted to HUD. All rent policies
should be included. Even with mandatory policies, PHAs have a lot of
discretion.
Response. HUD believes that the rule provides for a PHA Plan that
presents the necessary framework for local accountability. In addition,
the rule provides that PHAs must make HUD-specified documents (which
includes documents covering all critical operations of a PHA) available
locally to the public for inspection. Therefore, the public has a
complete view of the PHA's operations.
Comment. In the preamble to the interim rule, quantifiable goals
are discussed. Where the Family Self-Sufficiency (FSS) Program is
discussed, the goal should be determined by looking at how many
families have replaced welfare income with earnings.
Response. PHAs are welcome to frame an FSS goal as suggested by the
commenter.
2. Comments Regarding Timing of the Rule
Comment. The time frame for implementation in the interim rule is
too short to do all the work and will create a serious burden for PHAs.
This is particularly so given all the new changes required by the
Public Housing Reform Act. HUD should allow for extensions and delay
publication of the final rule to allow adequate time for enhanced
rulemaking sessions. Additionally, HUD's estimate of time needed to
complete the planning process does not take into account the lack of
guidance and instructions provided by HUD. HUD should issue guidance,
not prescriptive rules, and this help should be given early in the
process, not later.
Response. The Public Housing Reform Act does not permit HUD to
delay issuance of this final rule. HUD recognized, however, that
additional time was needed by PHAs for submission of their first PHA
Plans and HUD has provided the additional time in the rule published on
September 21, 1999, and discussed earlier in this preamble. In addition
to allowing more time to prepare and submit the plans, HUD believes
that the electronic template assists PHA's in significantly reducing
the time for preparation and submission of the plan elements. Issuance
of the electronic template was accompanied by additional HUD guidance
on the PHA Plans. (See Notice PIH 99-33 (HA), issued July 30, 1999.)
3. Comments Regarding Small PHAs
Comment. The rule will create a real hardship for small PHAs, who
have limited staffs, budgets, and relatively few units. It is
unrealistic to expect small PHAs to comply with the timelines
established by the rule and the extra paperwork required by the rule.
The requirement that Plans be submitted 75 days prior to end of FY 2000
is a major burden for small PHAs, who need time to complete an in-depth
analysis. Another commenter stated that the requirement is also a
burden because small PHAs will need extra funds to complete the Plan
and the commenter stated that ``CDBG funds'' will not be available
until after the Plan is due. In addition, coordination with the State's
Consolidated Plan and forming Resident Advisory Boards will take
considerable time for small PHAs. Small PHAs are also already
overburdened with paperwork. The final rule should be delayed until HUD
works with PHAs to further streamline the rule.
Response. As noted in responses to earlier comments, HUD has made
considerable effort to reduce the administrative burden of the PHA
planning process on all PHAs, and especially small PHAs. With respect
to the timing, HUD provided through the September 21, 1999 final rule,
the maximum additional time that it could provide in accordance with
the statutory requirements. The statute itself is cognizant of the
burden that uniform requirements can place on small entities, and
allows HUD to provide streamlined PHA Plans for small PHAs which it has
done. As HUD also has noted earlier, HUD believes that its electronic
template considerably reduces the administrative burden on all PHAs
especially small PHAs.
Comment. Small PHAs should not have to submit homeownership
statements. Most small PHAs will probably never implement a
homeownership program because they do not have the personnel or
resources to undertake such a program.
[[Page 56849]]
Response. Under the streamlined submission for small PHAs, small
PHAs are only required to provide statements for Section 8
Homeownership programs that they plan to operate. Again, HUD believes
that the statements required by the PHA Plan electronic template
significantly reduce the PHA's administrative burden.
Comment. Small PHAs should not be automatically required to address
the crime prevention item because they have not had to address the
security indicator in PHMAP.
Response. Small PHAs are only required to address the crime
prevention items if they receive funding under the Public Housing Drug
Elimination Program (PHDEP).
Comment. Numerous small PHAs have Federal expenditures of less than
$300,000 per year. Since these PHAs are exempt from the Single Audit
Act, they should only be required to submit audit information if HUD
has approved the PHAs request for payment for a financial audit.
Response. The PHA Plan regulations do not require the submission of
any financial information inconsistent with the Single Audit Act (31
U.S.C. 7501-7507) or OMB Circular A-133 (Audits of States, Local
Governments and Non-Profit Organizations), and do not in themselves add
audit requirements.
Comment. Small PHAs have limited resources. One commenter
specifically asked whether CIAP funds can be used to complete the Plan.
Another commenter asked whether operating reserves be used and
reimbursed from capital funds.
Response. Capital and operating funds can be used to complete the
Plan, consistent with the regulatory requirements of these programs.
4. Comments Regarding Section 8-Only PHAs
Comment. Why are high performing and small PHAs exempt from
submitting a grievance procedures section and not Section 8-only PHAs.
This must be unintended.
Response. Section 8-only PHAs are not exempt from the grievance
procedures element of the PHA Plan. The template, however, basically
requires that these PHAs make these procedures available locally.
Comment. Section 8-only PHAs should not have to comply with
anything in this rule. Use of Section 8 is in the hands of residents.
The Consolidated Plan already covers Section 8 issues and public notice
is already required for Section 8 Administrative Plans.
Response. The statute includes PHAs that receive assistance under
section 8(o) of the U.S. Housing Act of 1937. HUD has no authority to
exclude these PHAs from the PHA planning process required under section
5A of the 1937 Act.
5. Issues on Which HUD Specifically Sought Comment
In the preamble to the February 18, 1999 interim rule, HUD
specifically sought comment on certain issues (see 64 FR 8179). Those
issues are listed here, as well as the comments received on these
issues, and HUD's responses to the comments.
The Feasibility of Combining the 5-Year Plan and/or Annual Plan With
the Submission of the Consolidated Plan Either in Whole or in Part
Comment. In response to this issue, many commenters would like to
see the Consolidated Plan and the Annual Plan combined so that the
process is not so burdensome and duplication is kept at a minimum. Most
of these commenters, however, requested that this be an option and not
a requirement. The commenters stated that while combining the plans
makes sense for ``joint agencies'' (by this it is understood to mean
agencies administering both Consolidated Plan and PHA Plan programs),
it makes no sense for independent PHAs. At the very least, combining
the two types of plans should not be a requirement for the first few
years of plan submissions.
Response. PHAs have the option of submitting the Annual Plan
simultaneously with the submission of the Consolidated Plan and
coordinating public processes, provided that the statutory and
regulatory requirements of both are met. Although the Congress provided
for the Annual Plan to be consistent with the Consolidated Plan, it did
not provide for the Annual Plan to be part of the Consolidated Plan.
The Congress established separate requirements for development,
submission and approval of the Annual Plan. Therefore the requirements
of both plans must be met.
Comment. For PHAs that want to combine the planning process, HUD
should assist by offering guidance on how to combine the processes and
allowing PHAs to change fiscal years to match localities. The plans
should be due at the same time.
Response. This rule allows PHAs, subject to HUD approval, to change
fiscal years to match localities. HUD's July 30, 1999 Notice includes
guidance that is helpful to PHAs interested in combining the PHA
planning process with the Consolidated Planning process.
Ways to Streamline or Merge Current Information Requirements Already
Reported Electronically by PHAs to HUD With the Additional Requirements
Listed in This Rule
Comment. In order to streamline reporting, HUD should increase the
accuracy of reports on the HUD website and should standardize
budgeting, requisitioning, and reporting requirements for all funding.
Response. HUD believes that the electronic template is a
significant step forward in meeting the commenter's concerns. HUD's
Office of Public and Indian Housing, as well as other HUD offices, are
working on standardization of required reports under HUD programs, and
converting these to a simple electronic format that can be accessed
through the internet.
Comment. PHAs should not have to include components that do not
apply them.
Response. The PHA Plan regulation includes only those components of
the Plan that PHAs are required by statute to submit. PHAs are only
required to make available information that pertains to programs and
activities they actually conduct.
How Should the Term ``Substantial Deviation'' be Defined
Comment. In the February 18, 1999 interim rule, HUD stated that a
PHA would not be required to submit an annual update of the 5-Year
Plan, but the PHA would be required to explain any substantial
deviation from the 5-Year Plan in its Annual Plan. HUD solicited
comment on how substantial deviation should be defined. Comments on how
this term should be defined were as follows. Substantial deviation
should be defined as any changes to a PHA's overall mission, any
changes to the goals or objectives that affect services to residents,
or significant changes to a PHA's financial situation. Substantial
deviation should be defined as a complete revision or abandonment of
one or more of the components in a PHA's 5-Year Plan. A substantial
deviation should not include a delay in the implementation of any
particular component caused by a PHA's business needs. Substantial
deviation should apply only to the mission statement and not to goals
or objectives. Community planning is not a static process, and goals
and objectives must be able to be changed without requiring HUD
approval each time. It should be sufficient that Resident Advisory
Boards
[[Page 56850]]
and PHA Boards review and approve these changes. The definition of
substantial deviation needs to take into account the social, political,
and economic conditions of an area because if any of these factors
changes, adjustments will need to be made in planning documents.
Substantial deviation should mean a change in a PHA's mission statement
or in the PHAs goals or objectives. Substantial deviation should not
deal with meeting objectives, nor should it include deviations based on
emergencies or circumstances out of a PHA's control. HUD should combine
the 5-Year Plan and the Annual Plan. This would simplify the definition
of substantial deviation because the issue would be covered by the term
significant amendments. The definition of substantial deviation should
be determined locally.
Response. HUD appreciates all the suggestions on how this term
should be defined. These comments convince HUD that the definition of
substantial deviation should be defined at the local level, as
suggested by some of the commenters. HUD believes that substantial
deviation should be defined at the local level as part of the public
participation in the PHA planning process. PHAs together with their
residents, local partners and affected and interested members of the
public are in a better position to define these terms. The definition
of this term, as well as others defined locally, must be noted in the
PHA Plan. The definition must be applied to the goals and objectives as
well as the mission statement.
With respect to combining the two plans, HUD notes that to a
certain extent the 5-Year Plan and the Annual Plan are combined because
they must be submitted at the same time, and the Annual Plan reflects
the mission and long range goals of the PHA as provided in the 5-Year
Plan. Additionally, HUD's electronic template for the PHA Plans
provides for the submission to be made as one.
What Constitutes an Acceptable 5-Year Plan?
Comment. An acceptable 5-Year Plan should be one that a PHA
believes in. HUD will not be able to review all 5-Year Plans, so this
requirement only matters to PHAs.
Response. HUD is required to review all PHA Plans, 5-Year Plans and
Annual Plans. A PHA's 5-Year Plan should provide for a mission and
goals and objectives that a PHA believes in. HUD believes that these
goals are likely to be consistent with the goals and objectives of the
HUD programs under which the PHA receives funding.
Comment. The February 18, 1999 preamble statement about what
constitutes an acceptable 5-Year Plan is correct, but meeting any goals
depends on annual appropriations. Any 5-Year Plan should have to
preface any goal with this acknowledgement. HUD cannot expect PHAs to
meet goals if funding is lower than expected. HUD should make specific
allowances in 5-Year Plans for the fact that increasing housing supply
is dependent on HUD and Congress.
Response. PHAs may condition the achievement of goals on at least
level annual appropriations where appropriate. PHAs should establish
goals and objectives that are ambitious given current funding levels.
Comment. The 5-Year Plan should be a strategic plan outlining goals
and objectives, strategies to meet goals and objectives, and barriers
and measurements of achievements.
Response. HUD believes that this is exactly what the 5-Year Plan
is, but to make the goals and objectives ones that can be practically
achieved, they need to be described in terms of quantifiable goals and
objectives.
Comment. HUD should consider a 5-Year Plan that substantially meets
or in good faith attempts to address the 18 components.
Response. The 18 components constitute the substance of the Annual
Plan. However, a 5-Year Plan that establishes quantifiable goals and
objectives that substantially meet or show a reasonable good faith
effort to address the purposes of the 18 components of the Annual Plan
(which components describe the PHA's overall strategy for handling
operations on an annual basis) will be considered acceptable.
The Manner of Submission of the Information Required Under the Annual
Plan.
Comment. The manner of submission should be as flexible as possible
and include fax, email, postal service, and Internet.
Response. With the introduction of the PHA Plan electronic
template, HUD believes that it has provided a highly flexible manner of
submission. Electronic submission provides for ease in preparation,
revisions, and submission. For PHAs that do not have the capability to
make electronic submission via the internet, HUD's local Offices of
Public and Indian Housing will assist PHAs with electronic submission.
Comment. Several commenters expressed concern about electronic
submission of the plan. Their concerns were as follows. HUD should
provide free software for submission of the Plan, but should not
require electronic submission in initial years so PHAs can focus on
formulating Plans and not have to fit parameters of preconceived
format. This is especially important because PHAs do not know how
difficult the software will be to master, what ``bugs'' the software
will have, and whether it will be compatible with other PHA systems.
The Plan should not be submitted electronically because the Plan has to
be available for public view. HUD and the public should review
identical copies of the Plan.
Response. With respect to the Plan software, HUD has adopted an
internet submission system that utilizes commonly-used office software.
The electronic template for the Plan has been available free of charge.
HUD has been testing the submission system before and after
announcement of the template's availability on July 30, 1999. HUD
believes that there should not be any delay in the use of the template
for PHA Plan submissions. The template will significantly reduce the
administrative burden on PHAs. HUD is ready to assist PHAs with its use
and will respond rapidly to correct any ``bugs'' in the system.
With respect to the capability of PHAs to submit information
electronically, in today's environment, HUD believes that all PHAs have
access to computers and therefore this type of electronic capability
but may not have internet capability. HUD's local Offices of Public and
Indian Housing will assist these PHAs with electronic submission of PHA
Plans to HUD Headquarters via the internet.
With respect to public review of the plan, electronic submission
does not preclude a hard copy printout by the PHA of the information
submitted electronically to HUD.
Comment. The Plan software used for submission should allow for
hyperlinked access to public information found in other electronic
submissions or as part of the Consolidated Plan.
Response. The PHA Plan is required to be submitted in electronic
form, and HUD is working on quick and easy electronic access to public
information found in other electronic submissions or as part of the
Consolidated Plan.
Comment. The rule offers a positive feature in providing that PHAs
will not have to resubmit previously submitted items. HUD should,
however, move expeditiously to consolidate all required
[[Page 56851]]
submissions. Do previously submitted items include previously submitted
unfunded CIAP applications? What does HUD mean by the local
availability of previously submitted items? Does this mean a file
cabinet, specific building, city, town, or can a PHA identify the local
HUD office?
Response. With advancements in technology, HUD believes that
eventually it as well as its program partners will be able to
consolidate information (including items previously submitted in non-
electronic forms) into an easily downloadable electronic document.
HUD's Office of Information Technology is working to move HUD closer to
that objective for this program as well as others. With respect to the
location of locally available information, the PHA will identify in the
PHA Plan the location closest to its main offices (if not made
available at its main office) that contains the information that must
be made available locally, including items previously submitted to HUD.
Comment. The final rule should clarify exactly where in HUD the
Plan should be submitted.
Response. The PHA Plans are to be submitted to HUD via the
internet. Through this submission, HUD offices that need to review the
plans or elements of the plans can do so simultaneously.
HUD's addition of items to the Annual Plan submission and whether
commenters recommend any other items for inclusion.
Comment. If HUD wants to add items to the Plan, they must do so by
public notice and comment. HUD should not be allowed to add items not
required by the Public Housing Reform Act.
Response. To the extent that items added by HUD to the Plan are not
reasonably within the Plan's scope and do not constitute clarifications
of information that clearly the statute envisions to be submitted, HUD
will provide the opportunity for notice and comment. HUD also notes
that it may be required to add items to the Plan as a result of new
statutory requirements and subsequently enacted statutes may provide
for immediate implementation of new Plan components and preclude the
opportunity for notice and comment.
Comment. The regulation should require that PHAs state reasons for
decisions made and any policy choices.
Response. The PHA Plan electronic template requires PHAs to
indicate the reasons they selected particular strategies for addressing
housing needs.
Comment. Several commenters offered suggestions on items that
should or should not be part of the streamlined plans. PHAs that have
been high performing for two consecutive years should only have to
submit Plans with admissions, demolition/disposition, and fair housing
certification. High performers and small PHAs should also be required
to submit grievance policies, conversions, and community service
programs because these programs directly affect residents. Streamlined
Plans should include conversion, description of asset management, and
Family Self-Sufficiency information because so many PHAs are either
high performing or small.
Response. HUD appreciates the suggestions made by the commenters.
At this time, HUD is not making changes to the streamlined plans to be
submitted by high performing PHAs or small PHAs that are not troubled.
The PHA Plan electronic template makes the Plan submission
significantly easier. With respect to submissions regarding
conversions, the conversion submission and approval process is a
separate process as HUD has noted earlier in this preamble. Other
documents covered by the PHA Plan but that are not part of the Plan
submission are required to be available locally for review. The
addition of documents to be made available locally but not submitted to
HUD also will facilitate the public review.
Comment. What should high performing PHAs who are also small PHAs
submit (1)?
Response. PHAs that are small PHAs and also designated high
performing PHAs should submit the Plan elements described for high
performing PHAs.
Comment. The final rule should clarify the definition of high
performing PHA by adding the following language ``as of the last annual
or interim assessment of the PHA before the submission of the 5-Year or
Annual Plan''.
Response. HUD agrees with this comment and has added clarification
language to the regulation.
What Should Constitute ``Significant'' Amendments or Modifications to
Either the 5-Year Plan or Annual Plan?
Comment. Comments on what constitutes significant amendments or
modifications were as follows. The final rule must clarify what a
significant amendment is and when HUD needs to approve it. PHAs should
be able to correct errors or omissions without having to restart the
entire process. The final rule should define significant amendments as
anything that substantively alters the policies as originally proposed
or that might result in a different outcome for or treatment of
tenants, participants, or applicants. Any amendment should be subject
to a fair housing analysis. The definition of significant amendments
should exclude any changes that are made as a result of new HUD
regulations not in effect when the Plan was developed.
Response. HUD appreciates these comments and has decided that the
changes that constitute significant amendment or modification should be
defined at the local level. As noted earlier in this preamble (under
the section which highlights changes made at the final rule stage), HUD
has amended Sec. 903.7(r) to provide that a PHA must include in the PHA
Plan a brief statement identifying the basic criteria it will use for
determining what constitutes a significant amendment or modification of
its plan for purposes of Sec. 903.21.
Whether the Final Rule Should Provide That a PHA Must Post Notice in
the Projects Owned, Operated or Administered by the PHA That the Plan
has Been Approved and Provide Information on Where the Plan may be
Inspected, and Also Whether the PHA Should Post Notice in a Newspaper
of General Circulation That the Plan has Been Approved and Information
About its Availability for Review.
Comment. The final rule should adopt a requirement that PHAs should
post a notice in a newspaper of general circulation that the Plan has
been approved and information about its availability for review. The
final rule should require that notices be posted at all developments
and that copies of pending and final plans should be made available at
all developments, not just the principal office of the PHA. In
addition, residents should be able to view these plans in the evening
and not just during normal business hours. The final rule should not
require posting and publication of notice after the Plan is completed
and approved.
Response. HUD appreciates the comments in response to this issue.
HUD has decided not to change the rule at this time. HUD, however
encourages PHAs to adopt these suggestions. Additionally, as part of
the public input on the plans, the PHAs and the public may wish to
adopt such a requirement as part of their local process.
Is the rule organized in a manner that is helpful and should the rule
include a definition section?
Comment. The final rule should not adopt the conversational tone
and question-and-answer format used in the
[[Page 56852]]
interim rule. This format is best reserved for supporting documents
that are designed to provide additional guidance for complying with HUD
regulations. The conversational tone and question-and-answer format
detracts from the ability of governed entities to easily ascertain what
is required of them and to locate provisions that govern specific
questions with optimal speed and efficiency.
Response. The question-and-answer format is strongly encouraged by
the Administration's Plain Language initiative. The concern is that too
many regulations are incomprehensible because they are written using
terms that are too legalistic and too entrenched in the language of
Federal bureaucracy. The majority of HUD's regulations are now being
written in this format, and without complaint from HUD's constituents.
HUD notes that only one commenter made this comment. HUD notes that the
PHA Plan template provides for consolidated, easily referenced
information.
Comment. The final rule should contain a definition section.
Response. Many of the terms that HUD would generally define are
already defined in regulations governing HUD programs in which PHAs are
participants. HUD declines to repeat these definitions in this part.
For other terms, HUD declines to be overly prescriptive and prefers to
give PHAs greater flexibility by allowing them to define terms at the
local level given local considerations.
6. Comments on Specific Provisions of the Interim Rule
Section 903.1 What are the Public Housing Agency Plans?
Comment. As the following comments indicate, several commenters
were concerned about the format of the plans. Comments were as follows.
HUD should not require PHAs to submit Plans when HUD has not specified
the format for the Plan nor given guidance to PHAs on all issues. HUD
should delay publication of the final rule until the rule can be
clarified. HUD needs to define the format, substance, and length of the
Plan. If HUD does not specify a format by July 1, 1999, initial Plans
should be accepted in any format. PHAs should be able to simply
reference other documents in the Plan and insert only brief summaries
of those documents.
Response. As noted earlier in this preamble, HUD has addressed
these concerns through its July 30, 1999 issuance of the PHA Plan
electronic template and accompanying guidance, and HUD's decision to
delay the date for the first submissions to December 1, 1999.
Section 903.3 When Must a PHA Submit the Plans to HUD?
Comment. HUD needs to clarify when the 75-day process starts and
stops. The interim rule is not clear about when PHAs are required to
submit their Plans.
Response. HUD's rule published on September 21, 1999, clarifies
this process, and this language is included in this final rule.
Comment. Large PHAs should be able to submit separate Annual Plans
for different jurisdictions or be allowed to submit Plans in phases.
Response. The statute does not allow for this type of submission.
HUD believes that the framework for the Annual Plan adopted by the
Congress is similar to that of the Consolidated Plan, and the objective
of this framework is to consolidate information and present a single
unifying plan that crosses jurisdictional lines where there are more
than one jurisdiction. The additional objective is to provide for one
annual submission by a PHA, not staggered submissions.
Section 903.5 What Information Must a PHA Provide in the 5-Year Plan?
Comment. Why is HUD requiring a 5-Year Plan when PHAs only get
funding on a yearly basis?
Response. The 5-Year Plan is a statutory requirement. Even if PHAs
only receive funding annually, it is funding that is assured annually
at some level, and therefore the PHA should plan for its uses on a
long-term basis.
Comment. The 5-Year Plan guidance needs further development. The
guidance appears to be a vision statement and not actual work items to
implement long range strategy. The required statements for the 5-Year
Plan should be combined into the Annual Plan (as part of the Executive
Summary) because the Annual Plan has to contain changes in the 5-Year
Plan anyway.
Response. The guidance and PHA Plan template issued on July 30,
1999, provides additional guidance to PHAs on development and
preparation of the 5-Year Plan, and on the format. PHAs are welcome to
develop more detailed plans than that provided by the template.
Comment. The 5-Year Plan should be subject to only cursory HUD
review.
Response. HUD's review must be consistent with the statutory
mandate imposed on HUD.
Section 903.7 What Information Must a PHA Provide in the Annual Plan?
This section of the rule describes the information that the PHA
must provide as part of the Annual Plan. There were a number of
comments praising HUD's approach to not require the submission of
certain items. There was also praise for elements of the Plan that high
performing PHAs and small PHAs were not required to submit. The
following presents the questions and concerns raised about the Plan
elements.
Comment. The final rule needs to contain more detailed descriptions
of what information is required under each section of the Plan so that
PHA submissions are more consistent. For example, under Sec. 903.7(b)
(financial resources) how is funding to be broken down for Section 8;
Sec. 903.7(c) (eligibility, selection, and admissions) should state
exactly what information is required; Sec. 903.7(e) (operation and
management) needs a clear list of what will satisfy a ``description of
the management organization''; Sec. 903.7(l) (community service and
self-sufficiency) is unclear about what information is to be submitted.
Response. These comments were submitted before HUD issued its July
30, 1999 guidance and the PHA Plan electronic template. The PHA Plan
template and guidance address these concerns.
Comment. The PHA Annual Plan should only include the information
necessary to reach the strategies and goals described in the PHA 5-Year
Plan. The final rule should not expand the list of items that are
required, under section 511 of the Public Housing Reform Act, to be
included in the Annual Plan. This will bring certainty to the PHA
planning process and allow PHAs to steadfastly pursue the goals
outlined in the 5-Year Plan.
Response. HUD believes that the PHA Plan regulation closely adheres
to the statutory requirements and does not go beyond these
requirements.
Comment. The February 18, 1999 interim rule provides that, before
submission of the first PHA Annual Plan, PHAs may submit an interim PHA
Annual Plan solely with respect to demolition and disposition. However,
the interim Annual Plan must include a certification of consistency
with the Consolidated Plan, and confirm that a public hearing was held
on the proposed action and that the resident advisory board was
consulted. (See the preamble discussion at 64 FR 8177-8178.) HUD should
extend the interim plan provision to cover: (1) The new voucher payment
standard; (2)
[[Page 56853]]
deconcentration and rent choice policies; and (3) any voluntary changes
in admission preferences prior to the submission of the complete
initial annual plan. This will help to ensure that residents
participate in the development of these important policies, and that
the policies are consistent with the Consolidated Plan.
Response. The interim plans for demolition or disposition addressed
a particular issue in the statute and legislative history, to allow
continued submission of applications for demolition or disposition
prior to submission of the first annual PHA Plans. Interim plans are
unnecessary for the other plan elements raised by the commenter.
Comments Regarding the Statement of Housing Needs
Comment. The provision of this data will be difficult for PHAs that
do not collect the required waiting list information. It would be
easier for the PHAs to provide the required information for families
admitted during the PHA's last fiscal year.
Response. The statutory language is clear that the information that
must be submitted under this Annual Plan element is waiting list
information. The guidance to the template makes clear that PHAs are not
being required to change their procedures regarding data verification
to supply this data.
Comment. It is unclear what information PHAs are being requested to
provide or what constitutes ``housing need.'' The final rule should
clarify terms such as: ``affordable,'' ``supply,'' ``quality,''
``accessibility,'' ``location,'' and ``size of units.'' Further, the
rule is ambiguous as to what income groups should be considered for
purposes of determining housing need. This must also be clarified.
Response. These terms are addressed in the guidance accompanying
the PHA Plan template.
Comment. PHAs should not be required to assess housing needs based
on the race or ethnicity of applicants for assisted housing. The
interim rule is unclear whether a threshold number of applicants
belonging to a certain racial/ethnic group triggers the need
assessment, or whether a single applicant from that group is
sufficient. Further, it is unclear how the information will help the
PHA meet its obligation to serve low, very-low, and extremely low-
income families. The rule is ambiguous regarding the ethnic/racial
groups a PHA must identify. The collection of this data may also
conflict with civil rights and fair housing requirements.
Response. The assessment of housing needs as provided in the
regulation is consistent with HUD's obligation to affirmatively further
fair housing. The guidance accompanying the PHA Plan template also
addresses this issue.
Comment. PHAs should be able to use the ``Housing Needs and Market
Analysis'' section of Consolidated Plan as their plan statement of
housing needs. However, the terms used in the PHA plan interim rule
differ from that used in the Consolidated Plan. HUD should provide
guidance to assist PHAs in using the relevant provisions of the
Consolidated Plan in preparing the annual plan statement of housing
needs. Another commenter expressed the opposite viewpoint. The
Consolidated Plan should not be used to develop the statement of
housing needs. The Consolidated Plan is based on outdated 1990 census
data. Further, the Consolidated Plan is rarely prepared by the PHA. PHA
waiting list data is the most accurate indicator of the potential
resident base. Accordingly, the PHA waiting list should be used to
develop the annual plan statement of housing needs. Another commenter
expressed opposition to use of waiting list data. The commenter stated
that gathering waiting list data will create significant administrative
burden for PHAs.
Response. The Consolidated Plan can serve as the basic source of
the PHA's housing needs statement. The PHA, however, needs to complete
the statement of housing needs as provided in the PHA Plan regulation.
The PHA Plan template significantly simplifies this task. The use of
waiting list data is a statutory requirement and HUD has no authority
to remove this requirement.
Comments Regarding the Statement of Financial Resources
Comment. The interim rule is overly prescriptive when it asks PHAs
to identify the planned uses of the financial resources by major
category (i.e., operations, modernization and or development, etc.).
This is addressed elsewhere in the Annual Plan and, therefore, it is
redundant to require PHAs to address them in this portion of the plan.
Response. The financial information required by the rule is
consistent with statutory intent and is the minimum necessary to allow
public housing residents, local representatives, taxpayers, and other
interested members of the public to sufficiently determine a PHA's
planned uses of its financial resources. The PHA Plan template reduces
the administrative burden of compiling and submitting this information.
Comment. HUD should clarify what financial data is required in the
statement of financial resources. Are PHAs required to provide end data
from the most recent calendar year, or from the most current fiscal
year?
Response. The PHA Plan template clarifies that the financial data
required to be included in the Plan concerns funds anticipated to be
available during the upcoming fiscal year.
Comment. The statement of financial resources should include
detailed PHA budgets with information regarding the operating and
modernization of the public housing, as well as personnel, consultant
and other contractors, equipment, supplies, utilities, and travel. With
fully disclosed information, residents and the public will better be
able to participate and reach the goals of the Public Housing Reform
Act.
Response. Current operating and modernization budgets are required
to be made available locally for review by the public.
Comments Regarding the Statement of Eligibility, Selection, and
Admission Polices
1. Transfers
Comment. The PHA Annual Plan should include specific policies for
the transfer of public housing residents to other public housing units
within the PHA. Transfer policies and practices are of critical concern
to residents and Resident Advisory Boards. Accordingly, all PHAs should
have written policies and procedures governing transfers, which should
be included in the PHA Annual Plan.
Response. Transfer policies are covered by the PHA Plan template.
These policies typically also will be in the PHA's admissions and
continued occupancy policies, which are required to be made available
to the public locally.
2. Deconcentration
Comment. Several commenters raised concern about the
deconcentration policies. Their concerns are as follows.
Deconcentration requirements will lower occupancy rates, make waiting
lists longer, and increase PHA administrative costs. HUD therefore
should not expand on the statutory language and impose a
deconcentration requirement on PHAs. HUD should accept the good faith,
best efforts made by a PHA to achieve deconcentration. HUD should
permit deconcentration to be addressed at a local level, and not
establish prescriptive Federally mandated requirements. There are
differences between rural, urban and
[[Page 56854]]
suburban agencies and individual reason for which families move. Any
Federal requirements should acknowledge variations in local conditions,
and provide PHAs with the flexibility to address those local issues.
HUD should provide additional guidance on what constitutes an
acceptable deconcentration policy. The final rule should provide that
PHA deconcentration policies must affirmatively further fair housing
and not discriminate against a protected class. Further, the final rule
should explicitly prohibit PHAs from establishing or enforcing racial
or financial quotas. The rule should also require that PHAs perform an
Analysis of Impediments as part of their PHA plan process. (The
Consolidated Plan includes a certification that requires the
preparation of an Analysis of Impediments to Fair Housing Choice).
Response. Section II of this preamble addresses the changes that
HUD has made with respect to deconcentration. HUD believes that these
changes address and balance the concerns of the commenters.
Comment. There is a conflict between the mission of the PHA to
serve low-income families and the deconcentration requirements of the
interim rule. If the PHA is supposed to focus on the needs of low
income families, how can it also be expected to undertake efforts to
attract higher-income families?
Response. HUD understands that these two objectives may appear in
conflict with each other. HUD's focus and the PHA's focus remain on
addressing the needs of low income families, but these needs are often
best served and best addressed by housing that provides for a mix of
family incomes--families that need HUD assistance but are not all in
the same income range.
Comment. The deconcentration requirements should not apply if the
PHA's developments all have similar average incomes. In such a
situation there is no income concentration. Deconcentration should only
be required if the difference hits a specific threshold, e.g. a 25%
disparity.
Response. HUD declines to adopt a threshold disparity as
recommended by the commenter. However, the new provisions added to the
final rule on deconcentration provide a measurement for compliance. The
rule provides that PHAs shall be considered to be in compliance with
the deconcentration requirements if they determine the average
household income in such developments and define higher-income families
as those with incomes over 115% of this average, higher-income
developments as those where the average family income is over 115% of
this average, lower-income families as those with incomes under 115% of
this average and lower-income developments as those where the average
family income is under 115% of this average.
Comment. The deconcentration requirements should only be applicable
to ``traditional'' public housing developments occupied entirely by
households eligible for public housing. Mixed income developments, Jobs
Plus sites, Welfare-to-Work sites, and other housing developments
hosting other demonstration programs should not be subject to the
deconcentration rules. These developments have special work incentives,
different rent structures and other factors that attract or retain
special subpopulations of public housing residents. Accordingly, they
are not suitable for deconcentration efforts.
Response. The statute does not limit applicability of the
deconcentration requirements to traditional public housing
developments. Generally, HUD has no authority to set such limitations.
Comment. In order to realize deconcentration, FMRs must be
increased in cities where the cost of housing is constantly increasing.
This is one of the most critical methods that will allow housing
residents a choice and an opportunity to lease in higher-income
neighborhoods.
Response. HUD believes that its system for setting fair market
rents generally meets this objective, but can be improved. HUD
currently is reviewing this system.
Comment. HUD should not require a PHA to perform an analysis of
household incomes until the MTCS data system can facilitate this type
of analysis.
Response. The analysis is not dependent upon the MTCS data system
but HUD recognizes that this system may facilitate the PHA's analysis.
HUD has worked to correct problems with MTCS, and is working with PHAs
to increase the level of reporting, as noted earlier in this preamble.
HUD believes that PHAs should be able to utilize this system in
performing their analysis.
Comment. The interim rule requires that PHAs use census tracts for
purposes of developing their deconcentration policies. The use of
census tracts for comparison of relative income does not work for many
scattered-site developments as they are in multiple census tracks. The
final rule should accommodate this problem by exempting scattered-site
projects from the deconcentration plan requirements.
Response. The final rule does not require an analysis based on
census tract data.
Comment. PHAs should be able to identify other factors (such as the
size of units) that play a role in relative income in order to
distinguish developments.
Response. The rule provides a safe harbor for defining lower income
and higher income which is simple, then leaves substantial flexibility
for implementation.
3. Targeting
Comment. The final rule should state that admissions policies must
include income targeting policies and must specify that local
preferences are subordinate to Congressional directive of targeting.
HUD needs to publish regulations covering how targeting must work soon.
Response. These policies were first addressed in HUD's proposed
rule on ``Changes to Admission and Occupancy Requirements in Public
Housing and Section 8 Housing Assistance Programs'' published on April
30, 1999 (64 FR 23460). The final rule on this subject is expected to
be published soon.
Comment. HUD should provide clear guidance about the interaction
between targeting, deconcentration, and site-based waiting lists. Which
takes precedence? How will HUD monitor or evaluate PHA success?
Response. Full compliance with both the specific income targeting
minimum percentages of extremely low-income households and with
deconcentration and income mixing provisions is required.
4. Site-Based Waiting Lists
Various proposals were made to modify the February 18, 1999 interim
rule's treatment of site-based waiting lists. As the preamble to the
interim rule discussed, the Senate Committee Report on the Senate
version of the Public Housing Reform Act (Congressional Record of
October 8, 1998, p. S11840) provides the most detailed statement on
site-based waiting lists. That report cites several of the possible
benefits of site-based waiting lists, but also acknowledges that past
HUD limitations were based on concern about racial steering and a
desire to prevent housing discrimination. HUD believes that the
approach proposed in the February 18, 1999 interim rule is
appropriately balanced in view of that legislative history. The
approach generally allows adoption of site-based waiting lists, with
protections to assure that applicants are aware of their choices and
rights, but also calls for careful monitoring of
[[Page 56855]]
implementation. This final rule therefore generally retains these
provisions, except that the requirement that MTCS data be confirmed by
independent audit is supplemented by other means of verification
acceptable to HUD and testing or other HUD-approved means of verifying
appropriate implementation are required at least every three years
rather than two years.
Comment. PHAs should not be required to use testers biannually. The
requirement is excessive if there is no indication of possible civil
rights violations. Testers should only be used to confirm problems
where there is an indication of steering or other illegal activities.
Other requirements such as the review of MTCS, absence of court orders,
PHA certifications, ongoing review of policies and HUD's monitoring
through FHEO are sufficient safeguards. HUD, and not PHAs, should
provide testers.
Response. As noted in Section II of the preamble and in the
introduction to this section of the public comments, HUD has revised
this requirement on the frequency of the use of testers. The final rule
provides that testers are to be used every three years. HUD believes
that the role of testers is not only to confirm problems but to
determine if problems exist that have not yet been raised.
Comment. Language in Sec. 903.7(c)(1)(v)(C) (any steps necessary)
is too broad and will result in a large burden for PHAs. The final rule
should be revised to state, ``any reasonable or business practicable
steps necessary.'' Additionally, site-based waiting lists should be
subject to no more scrutiny than review of the Plan.
Response. HUD believes that the additional language recommended by
the commenter is not necessary. ``Any steps necessary'' would include
business practicable steps. With respect to review of site-based
waiting lists, site-based waiting lists are part of the PHA Plan
approval process; that is the only approval necessary.
Comment. Additional concerns raised about site-based waiting lists
included the following. The final rule should ensure that site-based
waiting lists increase housing choice and options for minorities.
Policies should require that public housing applicants are advised of
all subsidized housing in the area. PHAs should supply applicants with
a list of every assisted housing development in the market area,
including tax credit properties, and HUD should give this list to PHAs.
HUD should design a standardized pre-application so that applicants
could copy the form and submit to various projects. PHAs should be
required to do a preliminary racial impact analysis. Requiring testers
is a good idea. For projects going into initial occupancy, HUD should
require a lottery system.
Response. HUD appreciates these comments, but declines to adopt up-
front the recommendations for additional procedures to be imposed on
PHAs. HUD believes that the rule takes the appropriate approach to
site-based waiting lists, which is to provide the necessary direction
and guidance to PHAs on the establishment of site-based waiting lists
and describe the circumstances in which a PHA may adopt a site-based
waiting list and provide for careful monitoring of implementation.
E. Rent Determination Policies
Comment. Does the statement of rents charged include the exception
procedures for minimum rents?
Response. Yes, this statement includes the exception procedures for
minimum rents.
Comment. Several comments on this rule were directed to the changes
in rent policies made by the Public Housing Reform Act. These comments
raised the following issues and questions. Since PHAs have to give
residents 90 days to prove they have a long term hardship and cannot
evict for nonpayment of rent, what effect will uncollected minimum
rents have on PHMAP indicator? Can PHAs submit a modification request?
Flat rents are based on rental value of units. What if rental value is
more than the actual monthly cost to provide and operate? The final
rule should clarify that PHAs can evict for nonpayment families on
minimum rent who fail to request hardship exemption or on the 91st day
for families who are denied hardship exemptions. PHAs will be at a
disadvantage if residents can set their maximum rent payments. How can
PHAs set a year-long budget when residents can change their rent
payments at will? HUD should limit rent payment changes to once per
year. The final rule should clarify minimum rent is discretionary for
PHAs and can be between $0 and $50.
Response. All these issues will be addressed in HUD's final rule on
Changes to Admission and Occupancy, expected to be published soon.
Comment. All rent policies should be in Plans, including mandatory
policies.
Response. It is an unnecessary administrative burden imposed on
PHAs to have them include in the Plan those PHA policies that only
repeat statutory or regulatory requirements. Additionally, the addition
of these policies would make the PHA Plan unwieldy.
F. Operations and Management
Comment. The Administrative Plan should be incorporated into the
Annual Plan. HUD should provide guidance on what information from the
Administrative Plan must be included in the Annual Plan.
Response. The PHA template provides guidance on information in the
Administrative Plan that must be included in the Annual Plan. The PHA
Plan regulation requires the Administrative Plan to be made available
for review by the public locally.
Comment. The preamble to the interim rule states that this section
is required for public housing and Section 8. The rule text only
mentions public housing. The final rule should clarify the
applicability of this requirement. Limiting the requirement to public
housing is not allowed by the Public Housing Reform Act. Congress did
not limit the statement to public housing. PHAs must be required to
submit Section 8 Administrative Plans.
Response. The regulatory text mentions both public housing and
Section 8 tenant-based assistance. Section 903.7(e) which addresses the
statement of a PHA's operation and management provides in paragraph
(e)(2) that the information pertaining to the PHA's rules, standards
and policies regarding management and maintenance of housing applies
only to public housing. This is the only portion of this subsection
that applies only to public housing. The rest of Sec. 903.7(e) applies
to both public housing and Section 8 tenant-based assistance.
G. Grievance Procedures
No significant issues were raised on this element of the plan.
H. Capital Improvements
Comment. The final rule should be revised to state that
Comprehensive Grant Program (CGP) updates will continue to satisfy this
requirement. HUD must distribute CGP formula amounts in a timely
fashion to ensure inclusion in the Plan. Additionally, Annual Plans are
due before CGP planning process would normally take place. Unless a
separate notice is issued that describes how modernization program
submission will be satisfied by Plans, PHAs should be able to reference
existing submissions.
Response. HUD's Comprehensive Grant Program is being replaced by
the Capital Fund Program. Accordingly, all
[[Page 56856]]
forms are being updated to reflect the new program. Guidance on the PHA
Plan template, issued July 30, 1999, addresses how PHAs may satisfy
Capital Fund planning requirements. As a transitional phase, PHAs will
be permitted to use properly updated CGP forms.
I. Demolition/Disposition
Comment. This section should be incorporated in the Asset
Management section.
Response. The statute provides for separate statements to be
submitted on demolition/disposition and asset management. (See section
511(d)(8) and (d)(17)). However, HUD's PHA Plan template includes an
optional chart by which the PHA can combine these and other plan
sections.
Comment. The final rule should require that the PHA Annual Plans
include: Reasons for demolition; a description of how the planned
demolition meets statutory criteria for demolition or sale;
identification of any studies relied upon that support the demolition
(and the studies should be available to Resident Advisory Boards); a
statement of specific requirements if consolidation of vacancies is
planned; relocation plans; and an evaluation in light of the
Consolidated Plan. The final rule also should require that the
application for demolition and any supporting documents be available at
PHA office.
Response. The PHA Plan regulation requires that demolition and/or
disposition applications must be made available locally for review by
members of the public. Affected or interested parties therefore have
the opportunity to review and comment to the PHA on these applications
if they so choose. As noted earlier in this preamble, demolition and/or
disposition activities are subject, by statute, to a submission and
approval process separate from the PHA Plan submission and approval
process. It would be an unnecessary administrative burden to have a PHA
duplicate in the PHA Annual Plan extensive information on planned
demolition and/or disposition that the PHA must provide under the
separate demolition/disposition approval process.
Comment. The interim demolition/disposition plan is unauthorized by
law and is inconsistent with deregulation and streamlining goals the
Public Housing Reform Act. HUD is prohibited from enacting early any
piece of the Plan.
Response. The Public Housing Reform Act provisions concerning
demolition/disposition were effective upon the statute's enactment. The
interim plan fulfills Congressional intent that demolition/disposition
activities not be interrupted or halted and that HUD continue to
process demolition/disposition applications before, if necessary,
approval of the first PHA plans.
Comment. The rule needs to clarify the contents of the interim
demolition/disposition plan. Is the submission a statement or does the
PHA have to submit all components of the Annual Plan.
Response. As noted earlier in this preamble, HUD has added language
at the final rule stage to address submission of an interim demolition/
disposition plan. Also, HUD's notice to PHAs on demolition/disposition
processing requirements under the Public Housing Reform Act, PIH Notice
99-19, issued April 20, 1999, describes the information to be submitted
in the interim demolition/disposition plan.
J. Designated Housing
Comment. PHAs that submit streamlined Plans should have to submit
this information. The final rule needs to address how currently
approved designated housing plans meet the requirements of the Public
Housing Reform Act.
Response. Designated housing is subject to a separate application
and approval process, and designated housing is subject to separate
regulations. A streamlined plan does not need to repeat information
that is already required to be submitted under a separate approval
process, and the PHA Plan regulation does not need to duplicate
information addressed in other regulations. Designated housing
applications, however, are required to be made available locally for
review by members of the public.
K. Conversion
Comment. The final rule should require an evaluation of conversion
in relation to the Consolidated Plan, include certification from local
officials, describe any demolition/disposition plan for units, set
forth time table, and provide for certification of resident
consultation.
Response. Demolition/disposition and conversion plans are subject
to a submission and approval process separate from the PHA plan
submission and approval process. These applications, however, are
required to be made available locally for review by members of the
public.
L. Homeownership
Comment. PHAs should be allowed to propose creative ways to
increase homeownership opportunities.
Response. The PHA Plan rule reflects the statutory requirement with
respect to the information that must be part of the PHA Plan. The
statute requires a description of any homeownership programs of the
agency under section 8(y) or for which the public housing agency has
applied or will apply for approval under section 32 of the U.S. Housing
Act of 1937. The fact, however, that the statute requires this
information, and the rule reflects the statutory requirement, does not
preclude PHAs from proposing creative ways to increase homeownership
opportunities and these proposals can be part of the PHA's 5-Year Plan
or other information that it may choose to provide in its Annual Plan.
Comment. PHAs should be required to establish measures to increase
accessibility to homeownership programs for persons who have
successfully participated in the Continuum of Care Program.
Response. HUD believes that establishing such a requirement exceeds
HUD's statutory authority with respect to the PHA planning process.
M. Community Service and Self-Sufficiency
Comment. Several commenters addressed concerns not about
information required to be included in the PHA Annual Plan with respect
to community service and self-sufficiency, but implementation of these
requirements. The comments raised the following concerns. Eviction for
noncompliance with this requirement will be difficult to uphold in
courts. PHAs will need additional insurance protection to cover
increased number of volunteers. Residents who volunteer at a church/
temple should be exempt from community service requirements. Does
service on a Resident Advisory Board count towards community service.
PHAs should not have to monitor community service unless they have an
FSS program. Welfare agencies should conduct monitoring. The final rule
should list the exemptions to the community service requirement listed
in section 512(a)(2) of the Public Housing Reform Act. This requirement
will create a huge burden with limited benefit. Residents should be
able to self-certify compliance with this requirement.
Response. These issues will be addressed in HUD's final rule on
``Changes to Admissions and
[[Page 56857]]
Occupancy Requirements in Public Housing and Section 8 Housing
Assistance Programs,'' which expected to be published soon.
Comment. Rulemaking for this requirement is incomplete. Will PHAs
be required to submit an amendment to their Plans when the final rules
are published. The community service requirement should not be
implemented before January 1, 2001.
Response. HUD has completed the rulemaking for this requirement.
HUD's final rule on Changes to Admission and Occupancy Requirements,
which is expected to be published soon, addresses this requirement. HUD
has informed the PHAs with fiscal years commencing January 1, 2000,
that community service need not be a part of their PHA Plans for that
fiscal year.
N. Safety/Crime Prevention
Comment. The requirement to check for lifetime registration for sex
offenders is an unfunded mandate. Such checks undertaken by the Federal
Bureau of Investigation (FBI) cost $27 and take 30-90 days. HUD should
arrange for PHAs to obtain this data at no charge.
Response. This issue is not relevant to this rule, but pertains to
HUD's rule on ``One Strike Screening and Eviction for Drug Abuse and
Other Criminal Activity.'' The proposed rule for this subject was
published on July 23, 1999 (64 FR 40262). HUD is developing the final
rule.
Comment. The submission requirements should be modified to require
submission of Public Housing Drug Elimination Program (PHDEP) grants
only.
Response. For high performing and small PHAs, the final rule limits
the submission to PHDEP grant information only.
Comment. Until HUD issues a separate notice how PHDEP will be
satisfied by Plans, PHAs should be able to reference existing
submissions.
Response. HUD issued its final rule on PHDEP formula allocation on
September 14, 1999 (64 FR 49900).
O. Pets
Note: A number of commenters made substantive suggestions
regarding how pet policies should be structured (as opposed to
comments about the structuring of the PHA Plans). These comments
will be responded to in the final rule concerning pet ownership in
public housing.
Comment. The final rule should clarify when this submission is
required. The February 18, 1999 interim rule states that this
submission is not required until HUD issues its pet regulations, but
there are already pet rules covering elderly and people with
disabilities projects. In addition, the final rule should clarify
whether PHAs must make a submission if they have their own pet policy
in effect.
Response. The regulations governing pets in housing for the elderly
or persons with disabilities are not required to be covered by the PHA
Annual Plan. The Public Housing Reform Act requires a statement
concerning the PHA's policies and requirements pertaining to the
ownership of pets in public housing issued in accordance with section
31 of the 1937 Act. HUD's proposed rule to implement section 31 of the
1937 Act was published on June 23, 1999 (64 FR 33640). Approximately
4,000 timely public comments were received on this rule, and
approximately 3,000 public comments continued to be submitted to HUD
well past the August 23, 1999 comment deadline. HUD is developing the
final rule.
P. Civil Rights
Comment. The deconcentration policies contradict the affirmatively
furthering fair housing policies.
Response. HUD disagrees. Both policies work to improve housing
options for low-income families.
Comment. HUD needs to issue further guidance regarding the
maintenance of records to reflect analysis of programs and impediments.
The guidance needs to address which programs will be analyzed, how the
analysis is to be documented, and how often must the analysis be done?
Response. This final rule provides guidance concerning these
analyses.
Q. Asset Management
Comment. This requirement is confusing and redundant. Much of this
area is covered in other areas of the Plan.
Response. As noted earlier in this preamble, the statute requires a
separate submission on asset management. However, the PHA Plan
regulation (and the PHA Plan template) clarify that information related
to asset management addressed under other Plan elements is not to be
repeated in the asset management section.
Comment. This requirement is unclear, especially with regards to
Section 8. More guidance is needed in the final rule.
Response. The electronic template issued by HUD on July 30, 1999,
provides the additional guidance that is needed to satisfactorily
respond to this element of the PHA Annual Plan.
Section 903.13 What is a Resident Advisory Board and What is its Role
in Development of the Annual Plan?
Comment. When a Resident Advisory Board files a written request
with HUD claiming that a PHA has failed to provide adequate notice and
opportunity for comment, HUD's 75-day review limit should be tolled so
that the PHA may respond to the claim.
Response. Section 903.13(c)(2) of the PHA Plan regulation addresses
the commenter's concern.
Comment. It is very difficult and even impossible in some projects
to obtain resident participation. In those cases where PHAs are
unsuccessful in forming Resident Advisory Boards because of a lack of
resident interest, the Resident Advisory Board requirement should be
considered satisfied if the PHA has made adequate efforts to establish
a Board. PHAs can only make resident participation opportunities
available, they cannot require participation. Additionally,
confidentiality is very important to section 8 participants and results
in less of a desire to participate. If HUD wants to ensure residents
participation, they should make such participation part of the lease
requirement.
Response. HUD believes that the cases in which PHAs were unable to
form Resident Advisory Boards will be few. If, however, PHAs have been
unsuccessful in forming Resident Advisory Boards, they should notify
HUD immediately and advise the efforts undertaken to establish Resident
Advisory Boards. HUD will determine at that time what additional action
may be necessary.
Comment. Resident Advisory Boards should be involved in the
preparation of the 5-Year Plan as well as the Annual Plan.
Response. Section 903.19 of the rule permits the PHA to adopt its
5-Year Plan only after, among other things, the PHA has consulted with
the Resident Advisory Board or other resident organizations about any
changes made to the plan. Additionally, the 5-Year Plan is subject to
public input and through this process, Resident Advisory Boards have
the opportunity to be involved in the preparation of the 5-Year Plan.
Comment. The interim rule is unclear about whether Resident
Advisory Boards can contact HUD directly to protest the 5-Year Plan in
addition to the Annual Plan. The final rule should protect PHAs by
providing only a restricted right of protest.
Response. Any party may complain to HUD concerning a PHA's
[[Page 56858]]
noncompliance with its plan or with the PHA Plan regulations.
Comment. The final rule should identify how Resident Advisory
Boards will be financially supported, what funds are available, and
what funds PHAs will provide. For example, can a PHA give stipends to
residents and exclude them from rent calculations, or can the PHA use
CIAP, CGP, or Capital funds? The final rule should make clear that the
resources for Resident Advisory Boards include technical assistance.
HUD should provide sufficient resources to Resident Advisory Boards to
ensure that residents are effectively represented.
Response. The funds available to Resident Advisory Boards, resident
organizations and for resident activities are generally the funds
appropriated for HUD's public housing funded programs. For example, in
the preamble to HUD's Capital Fund formula proposed rule published on
September 14, 1999 (64 FR 49924), HUD noted that various funds
allocated to Resident Advisory Boards, other resident organizations and
for resident participation are eligible Capital Fund management
expenses if the activities engaged in by these groups are directly
related to Capital Fund activities. Funds are available to Resident
Advisory Boards and other resident organizations from the public
housing Operating Fund, and other HUD funded programs.
Comment. PHAs should be allowed to self-certify to compliance with
Resident Advisory Board requirement.
Response. Section 903.13 only requires that PHAs, in submitting
their final plans to HUD for approval, must include a copy of the
recommendations made by the Resident Advisory Board or Boards and a
description of the manner in which the PHA addressed these
recommendations. If the Resident Advisory Board did not provide
recommendations, the PHA need only note that in its plan submission.
Comment. The final rule should require broader collaboration
between PHAs and Resident Advisory Boards. The final rule should
require PHAs to: produce a Plan development time-line before the Plan
development process begins and share this time-line with Resident
Advisory Boards; give Resident Advisory Boards early notice of when
Plan development process begins and provide copies of drafts to
Resident Advisory Boards; hold joint meetings with Resident Advisory
Boards throughout the Plan development process; and give Resident
Advisory Boards written notice of their right to seek recourse from
HUD, the mechanisms to seek this recourse, and HUD contact information
.
Response. The final rule clarifies that Resident Advisory Boards
are to assist and make recommendations to PHAs regarding the
development of the PHA plan, and any significant amendment or
modification to the PHA plan. HUD declines to impose, by regulation,
requirements beyond those required by statute. HUD, however, encourages
PHAs to involve Resident Advisory Boards as early in the plan
development process as possible. Since PHAs must, by statute, involve
Resident Advisory Boards in the PHA Planning process, PHAs should find
it advantageous to consult with these Boards as early as possible.
Comment. Section 903.13 is confusing. HUD should add some
discussion of the different scenarios a PHA may face forming a Resident
Advisory Board and ensuring adequate Section 8 representation.
Response. A discussion of different scenarios that a PHA may face
in forming a Resident Advisory Board is not appropriate for regulatory
text. HUD will provide guidance on this issue through direct notices to
PHAs and through the Office of Public and Indian Housing website at
HUD's homepage.
Comment. Several comments were directed to the rule's requirement
that where a PHA has a tenant-based assistance program of significant
size, the PHA shall assure that the Resident Advisory Board or Boards
has reasonable representation of families receiving tenant-based
assistance. The comments raised the following issues. The definition of
significant size for a Section 8 program should be 1,250 or more
certificates. The definition of significant size should not be based on
the ratio of public housing to Section 8 units. A Section 8-only PHA
should be required to form an Resident Advisory Board regardless of the
size of the program. The Resident Advisory Board requirement should be
satisfied for Section 8-only PHAs if the PHA has an Family Self-
Sufficiency (FSS) coordinating committee with resident participation.
Response. HUD continues to believe that only PHAs with a tenant-
based assistance program of significant size should be subject to the
Resident Advisory Board requirement. HUD has defined significant size
to mean at least 20 percent of assisted households receive tenant-based
assistance.
Comment. Any waiver of this requirement should be granted only
after notice of waiver is given to all residents.
Response. The waiver of this requirement can only occur, in
accordance with the statute, if the PHA demonstrates to the
satisfaction of HUD that there exist resident councils or other
organizations that adequately represent the interests of the residents
of the public housing agency, and have the ability to perform the
functions of a Resident Advisory Board. Since this requirement can only
be waived if the residents are represented through some other
organization, notification of the waiver of this requirement to all
residents is unnecessary.
Comment. The final rule needs to provide criteria and guidelines
for what constitutes adequate representation and what is an appropriate
size for an Resident Advisory Board. The final rule should require that
Resident Advisory Board composition take into account representation
based on geographic neighborhood location and reflect the racial/ethnic
makeup of resident households. In addition, all Resident Advisory
Boards should be required to meet the requirements concerning the
structure and selection of authority-wide resident councils contained
in 24 CFR part 964.
Response. Resident Advisory Boards should not be viewed as a
totally new concept. Both PHAs and public housing residents have
experience with similar boards through resident councils. One of the
responsibilities of resident councils is to advise PHAs in all aspect
of public housing operations. Given the experience to date between PHAs
and resident councils, HUD declines to provide more specific guidelines
regarding representation. It is important to note, however, that the
final rule provides for appointment of a jurisdiction-wide resident
council that complies with HUD's regulations in 24 CFR part 964, or its
representatives as the Resident Advisory Board. If a jurisdiction-wide
resident council does not exist, local resident councils that are in
compliance with part 964 shall be appointed, provided that the PHA may
require the local council to choose a limited number of
representatives. The PHA may appoint other members only to cover public
housing or section 8 families not represented by a tenant council that
complies with 24 CFR part 964.
Comment. It will take time for PHAs to include Section 8
participants in Resident Advisory Boards. PHAs should be required to
address how they will address Section 8 participation in the Plan, but
actual participation should not be required for the initial submission.
Response. HUD does not believe that the inclusion of Section 8
participants
[[Page 56859]]
in Resident Advisory Boards will take such time that PHAs will be
unable to rely on this type of resident involvement in its first plans,
especially considering that the first plan submission dates have been
delayed by HUD.
Comment. The final rule should not require PHAs that already have
resident councils to form Resident Advisory Boards. The final rule
should specify, however, that any resident councils that are appointed
as Resident Advisory Boards can be expanded and that PHAs can use both
resident councils and Resident Advisory Boards.
Response. The statute provides for formation of Resident Advisory
Boards. HUD's PHA Plan regulation, however, requires PHAs to appoint
existing resident councils as Resident Advisory Boards when these
councils meet the statutory and regulatory requirements.
Comment. There should be no automatic appointments to Resident
Advisory Boards. The interim rule places too great a burden on PHAs to
ensure compliance with 24 CFR part 964 and may lead to perception that
PHAs are intruding into the internal workings of resident councils.
Using resident councils as Resident Advisory Boards is unwieldy--a
resident council could consist of as many as 50 residents. The Public
Housing Reform Act does not require that any particular group have an
absolute right to serve. HUD should leave it up to PHAs to design their
own Resident Advisory Boards.
Response. HUD believes that the rule is clear on the appointment of
Resident Advisory Boards. The rule provides that if a jurisdiction-wide
resident council exists that complies with the tenant participation
regulations in 24 CFR part 964, the PHA shall appoint the jurisdiction-
wide resident council or its representatives as the Resident Advisory
Board, except that members shall be added or another Resident Advisory
Board formed to provide for reasonable representation of families
receiving tenant-based assistance where necessary. If a jurisdiction-
wide resident council does not exist but resident councils exist that
comply with the tenant participation regulations, the PHA shall appoint
such resident councils or their representatives to serve on Resident
Advisory Boards, provided that the PHA may require that the resident
councils choose a limited number of representatives. The PHA would
appoint other representatives of families not represented by qualifying
resident councils. HUD believes that this best supports the purposes
and administration of part 964, which is the only regulation
specifically protected by the Public Housing Reform Act.
Comment. Participation by Section 8 participants is not required by
Public Housing Reform Act. Section 8 participants have little
significant relationship with a PHA after initial lease up, and Section
8 program lacks the communication structure of public housing. Section
8 participants should not be included in Resident Advisory Board
requirement.
Response. Section 8 tenant-based assistance is covered by the PHA
planning process. HUD believes that it is important that Section 8
participants are therefore included in this process as well.
Comment. A PHA's city-wide resident council is an appropriate
entity to discuss the Plan. Why does HUD require the group to change
its name when it is discussing the Plan? It will only serve to confuse.
Response. There is no requirement for a resident council to change
its name. The statute uses the term Resident Advisory Board and
describes specific functions that the Resident Advisory Board must
perform. The city-wide council need not change its name to Resident
Advisory Board, but it should be clear to the residents that the
council has been appointed the Resident Advisory Board as provided by
the statute.
Section 903.15 What is the Relationship of the Public Housing Agency
Plan to the Consolidated Plan?
Comment. Several comments were directed to the requirement that the
PHA plan be consistent with the Consolidated Plan. These comments
raised the following issues. Consistency should be defined as broadly
as possible and should be worked out at the local level. HUD official
who approves Consolidated Plan should be the same official who
determines consistency. HUD should give examples of what it considers
to be consistent Plans. Thirty days should be adequate for local
government review Plan and certify that it is consistent with
Consolidated Plan. HUD should work with States to ensure a workable
process of determining consistency with Consolidated Plan.
Response. HUD appreciates these comments and agrees that
consistency should be worked out at the local level. HUD, therefore,
declines to include a definition in the rule.
Comment. HUD should devise an appeals process or a waiver of
certification process to resolve disputes between Consolidated Plans
and PHA Plans. There are several concerns about the Consolidated Plan
process. For example, what if PHAs are not given adequate notice of the
State process and Consolidated Plan does not adequately cover housing
needs? What if the PHA Plan has to be consistent with various
Consolidated Plans? What if the Consolidated Plans are themselves not
consistent? What if a city's goals are not consistent with a PHA's
goals and the PHA's goal are more consistent with national goals?
Response. HUD will take these comments into consideration but HUD
is not adopting these concerns in this final rule. HUD notes that the
statute requires a PHA Plan to be consistent with the consolidated plan
and does not provide for exceptions. HUD believes that any
inconsistencies between a PHA's plan and the Consolidated Plan would
probably surface during the public hearing process. HUD also notes that
the Consolidated Plan process is subject to HUD's regulations in 24 CFR
part 91, which require public participation and consultation. Before
adopting regulatory measures to address possible inconsistencies, HUD
would like experience with the PHA planning process first to determine
if there are these problems as suggested by the commenters, and these
problems would not be resolved by either of the public participation
and consultation processes that govern the Consolidated Plan and the
PHA Plan.
Comment. The interim rule is not clear about what happens if the
Consolidated Plan has expired. HUD should allow PHAs to certify that
there is no active Consolidated Plan.
Response. Once a Consolidated Plan, once approved, continues in
existence until a new or updated Consolidated Plan is submitted and
approved.
Comment. If a deconcentration plan is inconsistent with
Consolidated Plan's identified needs, PHAs should be required to
explain steps taken to address this impact.
Response. PHAs are required to indicate why they chose the strategy
they did for addressing housing needs.
Section 903.17 Must the PHA Make Public the Contents of the Plans?
Comment. Notices should be given to other organizations and
agencies, such as legal services organizations, welfare agencies, local
governments, and non-profit housing providers. Copies of Plans should
be available at no cost to those who cannot afford to pay.
Response. With respect to notification about the plan to other
organizations and agencies, the final rule requires PHAs to undertake
reasonable outreach to encourage participation. With respect to copies
of the plan, the final rule is
[[Page 56860]]
clear that this information must be available for public review.
Comment. The final rule should specify that notices must be in
compliance with State public meeting laws.
Response. HUD need not adopt this requirement in the rule. PHAs
must operate in accordance with applicable State laws.
Comment. The final rule should provide PHAs with alternate ways to
provide residents with notice.
Response. The rule tracks the statutory requirement, and makes
clear the extent of the public's opportunity for participation in the
PHA Plan process. PHAs are encouraged to contact residents about the
PHA plan and the public hearing process in ways that the PHA believes
will provide for wide dissemination of this information and better
solicit interest.
Comment. The final rule should require that the notice list the
components of the Plan so that the public is clear as to the purpose of
the Plan. The notice should also make clear that this is the public's
only opportunity to comment.
Response. HUD declines to adopt such a requirement in the final
rule. PHAs are welcome to list the Plan's components in the notice and
are also encouraged to emphasize to the public that the hearing is the
opportunity for the public to provide comments and have input before
the plan's adoption.
Comment. The final rule should require a PHA Board to wait 30 days
after the public hearing before it can approve the Plan).
Response. HUD declines to adopt this requirement. The 30-day wait
may be a delay that is unnecessary given local circumstances. The
public housing residents, the public and local officials may be totally
supportive of the plan, and under these circumstances a 30-day delay
for submission of the plan would serve no clear purpose.
Comment. The final rule should provide for public participation
during the development of the Plan, not just when the Plan is ready to
be adopted.
Response. The rule reflects the statutory requirement. HUD declines
to impose a public participation requirement beyond that established by
statute. PHAs, however, are free to involve the public in the
development of the plan beyond the requirements imposed by the statute.
Comment. Some commenters suggested that the 45-day notice
requirement should be reduced to 15 days. One commenter suggested that
the requirement should be increased to 60 days.
Response. The 45-day notice requirement is set by statute. While
HUD could extend the time period, HUD cannot reduce this period. The
final rule reflects HUD's decision to adhere to the minimum statutory
time period.
Comment. Items submitted in advance of the Plan, such as
deconcentration policies and new preferences, should not be accepted
without input from Resident Advisory Boards and public comment.
Response. All items that are part of the PHA Plan, regardless of
whether submitted in advance, are subject to Resident Advisory Board
input and the public hearing process.
Section 903.21 May the PHA Amend or Modify the Plan?
Comment. Several concerns were raised about the PHA's amendment or
modification of the plan. Concerns were as follows. Section 903.21(a)
may strip a PHA's executive director of the authority to reasonably
modify certain policies, rules, or regulations without formal Board
approval. Further, the final rule should clarify that a ``duly called''
meeting is not subject to the 45-day notice requirement. Section
903.21(b) will significantly slow implementation of changes by giving
HUD 75 days to review amendments or modifications to the Plan. The
final rule should delete this provision and, instead, require PHAs to
submit significant changes as part of next Annual Plan. The final rule
should require that only modifications to the mission statement be
provided to HUD for approval. HUD should not be allowed more than 30
days to approve/disapprove amendments. The final rule should provide
that when PHAs amend or modify a Plan, the public should be given 45
days notice of the meeting to discuss the change. The notice should
include a description of any proposed changes.
Response. These requirements and time period with which the
commenters are concerned derive directly from the statute, and track
the statutory language.
Comment. Section 903.21 does not track all the required statutory
language. In particular, Sec. 903.21 does not include the requirements
to meet with Resident Advisory Boards and to conduct a public hearing
process.
Response. Consultation with the Resident Advisory Board is covered
in Sec. 903.13, and the public hearing process is covered in
Sec. 903.17.
Comment. Amendments should not be necessary for any changes made in
response to HUD actions or decisions.
Response. Depending upon HUD's actions or decisions regarding its
review of the PHA Plan, a PHA's failure to amend its Plan in response
to HUD actions or decisions may mean that the PHA does not have an
approved plan. If HUD's action requires no discretionary PHA action, no
amendment would be required. Section 903.23 addresses these issues.
Comment. PHAs should be able to inform HUD of any modifications in
the yearly progress report.
Response. PHAs are free to inform HUD of any modifications in its
yearly progress report, but PHAs must comply with the provisions of the
PHA Plan regulation for significant amendments and modifications.
Comment. The amendment process should not interfere with the day-
to-day operations of a PHA.
Response. None of the PHA planning process should disrupt the day-
to-day operations of a PHA. The PHA plan should contribute to more
effective operations.
Comment. The final rule should require that Resident Advisory
Boards be included in the amendment or modification process.
Response. The statute provides for this and the rule reflects this
requirement.
Section 903.23 What is the Process by Which HUD Reviews, Approves, or
Disapproves an Annual Plan?
Comment. HUD should indicate that any provisions of the Public
Housing Reform Act that are not yet fully implemented by HUD and are
components of the Plan will not be considered in the approval process.
Response. The PHA Plan template addresses what is currently
required to be included in the PHA Plan. As provisions of the Public
Housing Reform Act become implemented and are required by statute to be
included in the PHA Plan, the template will be updated to reflect these
provisions, and PHAs will be notified.
Comment. HUD should use a checklist to conduct reviews of Plans,
and this checklist should be distributed to PHAs.
Response. The PHA Plan template serves as the checklist that will
guide HUD in reviewing PHAs plans.
Comment. Troubled PHAs should not be ``deemed approved'' if HUD
does not respond in 75 days. Section 511 contains exceptions for
troubled PHAs. HUD needs to add language to Sec. 903.23 to address this
issue.
Response. The PHA Plan final rule reflects the exceptions for
troubled PHAs provided in section 511(i)(4)(A).
[[Page 56861]]
Comment. In the initial year, HUD should not penalize PHAs for late
or incomplete Plans. Generally, HUD should not penalize PHAs for late
or incomplete Plans who make a good faith effort to comply.
Response. For the initial PHA plans, HUD has delayed the date of
first submission as provided in the September 21, 1999 rule.
Additionally, the PHA Plan template makes preparation and submission of
the Plan much easier. With the template and additional time to prepare
and submit plans, HUD does not believe that PHAs will be late or plans
will be incomplete.
Comment. The final rule should clarify what the process is when HUD
does not approve a Plan.
Response. HUD's notice to the PHA disapproving the plan will not
only advise the PHA of the reasons for the disapproval but what action
the PHA needs to take to obtain approval.
Comment. Based on experiences with MTCS and the physical inspection
process, HUD has problems improving the accuracy of its information
about PHAs. HUD should provide a mechanism for resolving disputes over
inconsistencies in information contained in HUD databases. HUD should
be required to identify the specific information it says is
inconsistent and give PHAs the opportunity to corroborate or correct
the information.
Response. The relevancy of this comment to the PHA Plan rule is not
totally clear. HUD notes, however, that its physical inspection process
has a mechanism for resolving disagreements over claims that
information in HUD databases is inaccurate. This process is part of the
Public Housing Assessment System. HUD has similar systems for
correcting inaccurate information in other programs.
Comment. The final rule should provide a means for technical
corrections, re-submission, and conditional approval if HUD review
shows a need for minor changes.
Response. For minor changes, HUD believes that a formal process
mandated by regulation is not necessary. HUD and PHAs should be able to
easily address technical corrections and any necessity for minor
changes.
Comment. Complaints about PHA non-compliance with the Plan should
have to pass a materiality test before disrupting the HUD approval
process.
Response. The regulation does not provide that any complaint about
a PHA's non-compliance with the Plan will disrupt the HUD approval
process. Whether a complaint is filed with HUD during the review
process or after HUD approval has been given, HUD will investigate, but
this investigation will not interfere with HUD's responsibilities to
PHAs either as part of the PHA plan review and approval process or in
other areas. When the investigation is complete, and a finding made,
HUD will take appropriate action if action is required.
Comment. The final rule should make clear that a PHA will not need
HUD approval for anything the PHA does not currently need HUD approval
for.
Response. This is a broad statement but HUD believes that with
respect to the PHA plans, the rule is clear on what requires HUD
approval. This rule, however, only addresses the PHA Plan requirements.
Section 903.25 How Does HUD Ensure PHA Compliance With its Plan?
Comment. The final rule needs to contain more detail on how HUD
will measure PHA compliance and what actions will be taken if a PHA is
not in compliance.
Response. For the majority, if not all, of the elements that
constitute the PHA Plan, compliance is measured by a PHA's compliance
with existing program regulations. The PHA Plan brings together in one
source, the PHA's policies, financial information, operating
procedures, grievance procedures, and similar information, but a PHA's
compliance with these policies or procedures is covered by other
program regulations. Therefore, assuming that a PHA has an approved PHA
Plan and follows it, a PHA's compliance will be measured by the PHA's
compliance with existing program regulations.
Comment. HUD should refrain from taking enforcement actions against
PHAs and should use the Plan for monitoring purposes only. The final
rule should provide a process, similar to the one at 24 CFR part 135,
subpart D, for receiving complaints against non-complying PHAs.
Response. HUD believes that its response to the preceding comments
covers these issues as well. HUD's enforcement actions will largely be
based on a PHA's compliance with existing program regulations.
VI. Findings and Certifications
Paperwork Reduction Act
The information collection requirements for the interim rule were
approved by the Office of Management and Budget (OMB) in accordance
with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520) and have been assigned OMB Control Number 2577-0226. Changes
made to the information collection requirements at the final rule stage
are not yet approved. The approval when recieved will be announced by
separate notice. 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.
Executive Order 12866
This final rule was reviewed by the Office of Management and Budget
(OMB) under Executive Order 12866, Regulatory Planning and Review. OMB
determined that this final rule is a ``significant regulatory action,''
as defined in section 3(f) of the Order (although not economically
significant under section (3)(f)(1) of the Order). Any changes made to
the final rule subsequent to its submission to OMB are clearly
identified in the docket file, which is available for public inspection
in the office of the Department's Rules Docket Clerk, Room 10276, 451
Seventh Street SW, Washington DC, 20410.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this rule does not have a significant economic
impact on a substantial number of small entities. This final rule
implements, by statutory directive, a comprehensive planning system for
PHAs (which also provides for a consolidated statement of PHA policies
on various PHA operations) and also provides a consolidated reporting
mechanism. The PHA plans ultimately should minimize administrative
burden on all PHAs, including small PHAs, consistent with reasonable
accountability. HUD is sensitive to the fact, however, that the uniform
application of requirements on entities of differing sizes may place a
disproportionate burden on small entities. In this regard, the final
rule provides for submission of a streamlined plan by small entities.
For all PHAs, HUD's PHA plan electronic template, issued July 30, 1999,
significantly reduces the burden of preparation and submission of the
PHA Plan.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this final
rule will not have substantial direct effects on States or their
political subdivisions, or the relationship between the Federal
[[Page 56862]]
government and the States, or on the distribution of power and
responsibilities among the various levels of government. This rule
pertains solely to Federal assistance and no programmatic or policy
changes would result from this final rule that affect the relationship
between the Federal Government and State and local governments.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was prepared at the interim rule stage, in accordance with HUD
regulations in 24 CFR part 50 that implement section 102(2)(C) of the
National Environmental Policy Act of 1969 (42 U.S.C. 4223). That
Finding remains applicable to this final rule, 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, Room
10276, Department of Housing and Urban Development, 451 7th Street, SW,
Washington, DC 20410.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4; approved March 22, 1995) (UMRA) establishes requirements for Federal
agencies to assess the effects of their regulatory actions on State,
local, and tribal governments, and on the private sector. This rule
does not impose any Federal mandates on any State, local, or tribal
governments, or on the private sector, within the meaning of the UMRA.
List of Subjects in 24 CFR Part 903
Administrative practice and procedure, Public housing, Reporting
and recordkeeping requirements
For the reasons stated in the preamble, HUD adopts as final, the
interim rule published on February 18, 1999 (64 FR 8170), by revising
24 CFR part 903 to read as follows:
PART 903--PUBLIC HOUSING AGENCY PLANS
903.1 What are the public housing agency plans?
903.3 When must a PHA submit the plans to HUD?
903.5 What information must a PHA provide in the 5-Year Plan?
903.7 What information must a PHA provide in the Annual Plan?
903.9 May HUD request additional information in the Annual Plan of
a troubled PHA?
903.11 Are certain PHAs eligible to submit a streamlined Annual
Plan?
903.13 What is a Resident Advisory Board and what is its role in
development of the Annual Plan.
903.15 What is the relationship of the public housing agency plans
to the Consolidated Plan?
903.17 What is the process for obtaining public comment on the
plans?
903.19 When is the 5-Year Plan or Annual Plan ready for submission
to HUD?
903.21 May the PHA amend or modify a plan?
903.23 What is the process by which HUD reviews, approves, or
disapproves an Annual Plan?
903.25 How does HUD ensure PHA compliance with its plans?
Authority. 42 U.S.C. 1437c; 42 U.S.C. 3535(d).
Sec. 903.1 What are the public housing agency plans?
(a) There are two public housing agency plans. They are:
(1) The 5-year plan (the 5-Year Plan) that a public housing agency
(PHA) must submit to HUD once every 5 PHA fiscal years; and
(2) The annual plan (Annual Plan) that the PHA must submit to HUD
for each fiscal year for which the PHA receives:
(i) Section 8 tenant-based assistance (under section 8(o) of the
U.S. Housing Act of 1937, 42 U.S.C. 1437f(o)) (tenant-based
assistance); or
(ii) Amounts from the public housing operating fund or capital fund
(under section 9 of the U.S. Housing Act of 1937 (42 U.S.C. 1437g)
(public housing)).
(b) The purpose of the plans is to provide a framework for local
accountability and an easily identifiable source by which public
housing residents, participants in the tenant-based assistance program,
and other members of the public may locate basic PHA policies, rules
and requirements concerning its operations, programs and services.
(c) HUD may prescribe the format of submission (including
electronic format submission) of the plans, as well as the format of
attachments to the plans and documents related to the plan that the PHA
does not submit but may be required to make available locally. PHAs
will receive appropriate notice of any prescribed format.
(d) The requirements of this part only apply to a PHA that receives
the type of assistance described in paragraph (a) of this section.
(e) In addition to the waiver authority provided in 24 CFR 5.110,
the Secretary may, subject to statutory limitations, waive any
provision of this title on a program-wide basis, and delegate this
authority in accordance with section 106 of the Department of Housing
and Urban Development Reform Act of 1989 (42 U.S.C. 3535(q)) where the
Secretary determines that such waiver is necessary for the effective
implementation of this part.
(f) References to the ``1937 Act'' in this part refer to the U.S.
Housing Act of 1937 (42 U.S.C. 1437 et seq.)
Sec. 903.3 When must a PHA submit the plans to HUD?
(a) 5-Year Plan. (1) The first PHA fiscal year that is covered by
the requirements of this part is the PHA fiscal year that begins
January 1, 2000. The first 5-Year Plan submitted by a PHA must be
submitted for the 5-year period beginning January 1, 2000. The first 5-
Year Plans for such PHAs are due on December 1, 1999. For PHAs whose
fiscal years begin after January 1, 2000, the 5-Year Plans are due no
later than 75 days before the commencement of their fiscal year. For
all PHAs, after submission of their first 5-Year Plan, all subsequent
5-Year Plans must be submitted once every 5 PHA fiscal years, no later
than 75 days before the commencement of the PHA's fiscal year.
(2) PHAs may choose to update their 5-Year Plans every year as good
management practice. PHAs must explain any substantial deviation from
their 5-Year Plans in their Annual Plans.
(b) The Annual Plan. The first fiscal year that is covered by the
requirements of this part is the PHA fiscal year that begins January 1,
2000. The first Annual Plans for such PHAs are due December 1, 1999.
For PHAs whose fiscal years begin after January 1, 2000, the first
Annual Plans are due 75 days in advance of PHAs fiscal year
commencement dates. For all PHAs, after submission of the first Annual
Plan, all subsequent Annual Plans will be due 75 days in advance of the
commencement of a PHA's fiscal year.
Sec. 903.5 What information must a PHA provide in the 5-Year Plan?
(a) A PHA must include in its 5-Year Plan for the 5 PHA fiscal
years immediately following the date on which the 5-Year Plan is due to
HUD, a statement of:
(1) The PHA's mission for serving the needs of low-income, very
low-income and extremely low-income families in the PHA's jurisdiction;
and
(2) The PHA's goals and objectives that enable the PHA to serve the
needs of the families identified in the PHA's Annual Plan. For HUD, the
PHA and the public to better measure the success of the PHA in meeting
its goals and objectives, PHAs must adopt quantifiable goals and
objectives for serving those needs wherever possible.
(b) After submitting its first 5-Year Plan, a PHA in its succeeding
5-Year
[[Page 56863]]
Plans, in addition to addressing its mission, goals and objectives for
the next 5 years, must address the progress it has made in meeting the
goals and objectives described in its previous 5-Year Plan.
Sec. 903.7 What information must a PHA provide in the Annual Plan?
With the exception of the first Annual Plan submitted by a PHA, the
Annual Plan must include the information provided in this section. HUD
will advise PHAs by separate notice, sufficiently in advance of the
first Annual Plan submission date, of the information, described in
this section that must be included in the first Annual Plan, and any
additional instructions or directions that may be necessary with
respect to preparation and submission of the first Annual Plan. The
information described in this section applies to both public housing
and tenant-based assistance, except where specifically stated
otherwise. Additionally, the information that the PHA must submit for
HUD approval under the Annual Plan are the discretionary policies of
the various plan components or elements (for example, rent policies)
and not the statutory or regulatory requirements that govern these
components. The PHA's Annual Plan also must be consistent with the
goals and objectives of the PHA's 5-Year Plan.
(a) A statement of housing needs. (1) This statement must address
the housing needs of the low-income and very low-income families who
reside in the jurisdiction served by the PHA, and other families who
are on the public housing and Section 8 tenant-based assistance waiting
lists, including:
(i) Families with incomes below 30 percent of area median
(extremely low-income families);
(ii) Elderly families and families with disabilities;
(iii) Households of various races and ethnic groups residing in the
jurisdiction or on the waiting list.
(2) A PHA must make reasonable efforts to identify the housing
needs of each of the groups listed in paragraph (a)(1) on this section
based on information provided by the applicable Consolidated Plan,
information provided by HUD, and other generally available data. The
identification of housing needs should address issues of affordability,
supply, quality, accessibility, size of units and location. The
statement of housing needs also must describe the ways in which the PHA
intends, to the maximum extent practicable, to address those needs, and
the PHA's reasons for choosing its strategy.
(b) A statement of financial resources. This statement must address
the financial resources that are available to the PHA for the support
of Federal public housing and tenant-based assistance programs
administered by the PHA during the plan year. The statement must
include a listing, by general categories, of the PHA's anticipated
resources, such as PHA operating, capital and other anticipated Federal
resources available to the PHA, as well as tenant rents and other
income available to support public housing or tenant-based assistance.
The statement also should include the non-Federal sources of funds
supporting each Federal program, and state the planned uses for the
resources.
(c) A statement of the PHA's policies that govern eligibility,
selection, and admissions. This statement must describe the PHA's
policies governing resident or tenant eligibility, selection and
admission. This statement also must describe any PHA admission
preferences, and any assignment and occupancy policies that pertain to
public housing units and housing units assisted under section 8(o) of
the 1937 Act. The requirement to submit PHA policies governing
assignment only applies to public housing. This statement also must
include the following information:
(1) The PHA's procedures for maintaining waiting lists for
admission to the PHA's public housing projects. The statement must
address any site-based waiting lists, as authorized by section 6(s) of
the 1937 Act. This section permits PHAs to establish a system of site-
based waiting lists that is consistent with all applicable civil rights
and fair housing laws and regulations. Notwithstanding any other
regulations, a PHA may adopt site-based waiting lists where:
(i) The PHA regularly submits required occupancy data to HUD's
Multifamily Tenant Characteristics Systems (MTCS) in an accurate,
complete and timely manner;
(ii) The system of site-based waiting lists provides for full
disclosure to each applicant of any option available to the applicant
in the selection of the development in which to reside, including basic
information about available sites (location, occupancy, number and size
of accessible units, amenities such as day care, security,
transportation and training programs) and an estimate of the period of
time the applicant would likely have to wait to be admitted to units of
different sizes and types (e.g., regular or accessible) at each site;
(iii) Adoption of site-based waiting lists would not violate any
court order or settlement agreement, or be inconsistent with a pending
complaint brought by HUD;
(iv) The PHA includes reasonable measures to assure that such
adoption is consistent with affirmatively furthering fair housing, such
as reasonable marketing activities to attract applicants regardless of
race or ethnicity;
(v) The PHA provides for review of its site-based waiting list
policy to determine if it is consistent with civil rights laws and
certifications through the following steps:
(A) As part of the submission of the Annual Plan, the PHA shall
assess changes in racial, ethnic or disability-related tenant
composition at each PHA site that may have occurred during the
implementation of the site-based waiting list, based upon MTCS
occupancy data that has been confirmed to be complete and accurate by
an independent audit (which may be the annual independent audit) or is
otherwise satisfactory to HUD;
(B) At least every three years the PHA uses independent testers or
other means satisfactory to HUD, to assure that the site-based waiting
list is not being implemented in a discriminatory manner, and that no
patterns or practices of discrimination exist, and providing the
results to HUD; and
(C) Taking any steps necessary to remedy the problems surfaced
during the review and the steps necessary to affirmatively further fair
housing.
(2) The PHA's admissions policy with respect to deconcentration of
very low-income families and income-mixing, as required by section
16(a)(3)(B) of the 1937 Act (42 U.S.C. 1437n). To implement this
requirement, which is only applicable to public housing, PHAs must:
(i) Determine and compare the relative tenant incomes of each
development occupied predominately by families with children. PHAs
shall be considered to be in compliance with these requirements if they
determine the average household income in all such developments
combined and define higher-income families as those with incomes over
this average, higher-income developments and buildings as those where
the average family income is over this average, lower-income families
as those with incomes under this average and lower-income developments
and buildings as those where the average family income is under this
average;
[[Page 56864]]
(ii) Consider what admissions policy measures or incentives, if
any, will be needed to bring higher-income families into lower-income
and buildings developments and lower-income families into higher income
developments and buildings. PHA policies must devote appropriate
attention to both of these goals. PHA policies must affirmatively
further fair housing; and
(iii) Make any appropriate changes in their admissions policies.
(3) The policies governing eligibility, selection and admissions
are applicable to public housing and tenant-based assistance, except
that the information requested on site-based waiting lists and
deconcentration, which information is applicable only to public
housing.
(d) A statement of the PHA's rent determination policies. This
statement must describe the PHA's basic discretionary policies that
pertain to rents charged for public housing units, applicable flat
rents, and the rental contributions of families receiving tenant-based
assistance. For tenant-based assistance, this statement also shall
cover any discretionary minimum tenant rents and payment standard
policies.
(e) A statement of the PHA's operation and management. (1) This
statement must list the PHA's rules, standards, and policies that
govern maintenance and management of housing owned, assisted, or
operated by the PHA. The policies listed in this statement must include
a description of any measures necessary for the prevention or
eradication of pest infestation which includes cockroach infestation.
Additionally, this statement must include a description of PHA
management organization, and a listing of the programs administered by
the PHA.
(2) The information pertaining to PHA's rules, standards and
policies regarding management and maintenance of housing applies only
to public housing. The information pertaining to PHA and program
management and listing of administered programs applies to public
housing and tenant-based assistance.
(f) A statement of the PHA grievance procedures. This statement
describes the grievance and informal hearing and review procedures that
the PHA makes available to its residents and applicants. This includes
public housing grievance procedures and tenant-based assistance
informal review procedures for applicants and hearing procedures for
participants.
(g) A statement of capital improvements needed. With respect to
public housing only, this statement describes the capital improvements
necessary to ensure long-term physical and social viability of the
public housing projects, including the capital improvements to be
undertaken in the year in question and their estimated costs, and any
other information required for participation in the Capital Fund. PHAs
also are required to include 5-Year Plans covering large capital items.
(h) A statement of any demolition and/or disposition. (1) Plan for
Demolition/Disposition. With respect to public housing only, a
description of any public housing project, or portion of a public
housing project, owned by the PHA for which the PHA has applied or will
apply for demolition and/or disposition approval under section 18 of
the 1937 Act (42 U.S.C. 1437p), and the timetable for demolition and/or
disposition. The application and approval process for demolition and/or
disposition is a separate process. Approval of the PHA Plan does not
constitute approval of these activities.
(2) Interim Plan for Demolition/Disposition. Before submission of
the first Annual Plan, PHAs may submit an interim PHA Annual Plan
solely with respect to demolition/disposition. The interim plan must
provide the required description of the action to be taken, include a
certification of consistency with the Consolidated Plan, and
description of how the plan is consistent with the Consolidated Plan,
and confirm that a public hearing was held on the proposed action and
that the resident advisory board was consulted. Interim plans for
demolition/disposition are subject to PHA Plan procedural requirements
in this part (see Secs. 903.13, 903.15, 903.17, 903.19, 903.21, 903.23,
903.25) except that if a resident advisory board has not yet been
formed, the PHA may seek a waiver of the requirement to consult with
the resident advisory board on the grounds that organizations that
adequately represent residents for this purpose were consulted. The
actual application for demolition or disposition could be submitted at
the same time or at a later date.
(i) A statement of the public housing projects designated as
housing for elderly families or families with disabilities or elderly
families and families with disabilities. With respect to public housing
only, this statement identifies any public housing projects owned,
assisted, or operated by the PHA, or any portion of these projects,
that the PHA has designated for occupancy only by the elderly families
or only by families with disabilities, or by elderly families and
families with disabilities or will apply for designation for occupancy
by only elderly families or only families with disabilities, or by
elderly families and families with disabilities as provided by section
7 of the 1937 Act (42 U.S.C. 1437e). The designated housing application
and approval process is a separate process. Approval of the PHA Plan
does not constitute approval of these activities.
(j) A statement of the conversion of public housing to tenant-based
assistance. (1) This statement describes any building or buildings that
the PHA is required to convert to tenant-based assistance under section
33 of the 1937 Act (42 U.S.C. 1437z-5), or the status of any building
or buildings that the PHA may be required to convert to tenant-based
assistance under section 202 of the Fiscal Year 1996 HUD Appropriations
Act (42 U.S.C. 14371 note), or describes that the PHA plans to
voluntarily convert under section 22 of the 1937 Act (42 U.S.C. 1437t).
The statement also must include an analysis of the projects or
buildings required to be converted under section 33. For both voluntary
and mandatory conversions, the statement must include the amount of
assistance received commencing in Federal Fiscal Year 1999 to be used
for rental assistance or other housing assistance in connection with
such conversion. The application and approval processes for required or
voluntary conversions are separate approval processes. Approval of the
PHA Plan does not constitute approval of these activities.
(2) The information required under this paragraph (j) of this
section is applicable to public housing and only that tenant-based
assistance which is to be included in the conversion plan.
(k) A statement of homeownership programs administered by the PHA.
This statement describes any homeownership programs administered by the
PHA under section 8(y) of the 1937 Act (42 U.S.C. 1437f(y)), or under
an approved section 5(h) homeownership program (42 U.S.C. 1437c(h)), or
an approved HOPE I program (42 U.S.C. 1437aaa) or for any homeownership
programs for which the PHA has applied to administer or will apply to
administer under section 5(h), the HOPE I program, or section 32 of the
1937 Act (42 U.S.C. 1437z-4). The application and approval process for
homeownership under the programs described in paragraph (k) of this
section, with the exception of the section 8(y) homeownership program,
are separate processes. Approval of the PHA Plan does not constitute
approval of these activities.
(l) A statement of the PHA's community service and self-sufficiency
programs. (1) This statement describes:
[[Page 56865]]
(i) Any PHA programs relating to services and amenities
coordinated, promoted or provided by the PHA for assisted families,
including programs provided or offered as a result of the PHA's
partnership with other entities;
(ii) Any PHA programs coordinated, promoted or provided by the PHA
for the enhancement of the economic and social self-sufficiency of
assisted families, including programs provided or offered as a result
of the PHA's partnerships with other entities, and activities under
section 3 of the Housing and Community Development Act of 1968 and
under requirements for the Family Self-Sufficiency Program and others.
The description of programs offered shall include the program's size
(including required and actual size of the Family Self-Sufficiency
program) and means of allocating assistance to households.
(iii) How the PHA will comply with the requirements of section
12(c) and (d) of the 1937 Act (42 U.S.C. 1437j(c) and (d)). These
statutory provisions relate to community service by public housing
residents and treatment of income changes in public housing and tenant-
based assistance recipients resulting from welfare program
requirements. PHAs must address any cooperation agreements, as
described in section 12(d)(7) of the 1937 Act (42 U.S.C. 1437j(d)(7)),
that the PHA has entered into or plans to enter into.
(2) The information required by paragraph (l) of this section is
applicable to both public housing and tenant-based assistance, except
that the information regarding the PHA's compliance with the community
service requirement applies only to public housing.
(m) A statement of the PHA's safety and crime prevention measures.
With respect to public housing only, this statement describes the PHA's
plan for safety and crime prevention to ensure the safety of the public
housing residents that it serves. The plan for safety and crime
prevention must be established in consultation with the police officer
or officers in command of the appropriate precinct or police
departments, and the plan must provide, on a development-by-development
or jurisdiction wide-basis, the measures necessary to ensure the safety
of public housing residents.
(1) The statement regarding the PHA's safety and crime prevention
plan must include the following information:
(i) A description of the need for measures to ensure the safety of
public housing residents;
(ii) A description of any crime prevention activities conducted or
to be conducted by the PHA; and
(iii) A description of the coordination between the PHA and the
appropriate police precincts for carrying out crime prevention measures
and activities.
(2) If the PHA expects to receive drug elimination program grant
funds, the PHA must submit, in addition to the information required by
paragraph (m)(1) of this section, the plan required by HUD's Public
Housing Drug Elimination Program regulations (see 24 CFR part 761).
(3) If HUD determines at any time that the security needs of a
public housing project are not being adequately addressed by the PHA's
plan, or that the local police precinct is not assisting the PHA with
compliance with its crime prevention measures as described in the
Annual Plan, HUD may mediate between the PHA and the local precinct to
resolve any issues of conflict.
(n) A statement of the PHA's policies and rules regarding ownership
of pets in public housing. This statement describes the PHA's policies
and requirements pertaining to the ownership of pets in public housing
issued in accordance with section 31 of the 1937 Act (42 U.S.C. 1437a-
3).
(o) Civil rights certification. (1) The PHA must certify that it
will carry out its plan in conformity with title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000d-2000d-4), the Fair Housing Act (42 U.S.C.
3601-19), section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), and title II of the Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.), and also certify that it will affirmatively
further fair housing. The certification is applicable to both the 5-
Year Plan and the Annual Plan.
(2) PHAs shall be considered in compliance with the certification
requirement to affirmatively further fair housing if they examine their
programs or proposed programs, identify any impediments to fair housing
choice within those programs, address those impediments in a reasonable
fashion in view of the resources available, work with local
jurisdictions to implement any of the jurisdiction's initiatives to
affirmatively further fair housing that require the PHA's involvement,
and maintain records reflecting these analyses and actions.
(p) Recent results of PHA's fiscal year audit. The PHA's plan must
include the results of the most recent fiscal year audit of the PHA
conducted under section 5(h)(2) of the 1937 Act (42 U.S.C. 1437c(h)).
(q) A statement of asset management. To the extent not covered by
other components of the PHA Annual Plan, this statement describes how
the PHA will carry out its asset management functions with respect to
the PHA's public housing inventory, including how the PHA will plan for
long-term operating, capital investment, rehabilitation, modernization,
disposition, and other needs for such inventory.
(r) Additional information to be provided. (1) For all Annual Plans
following submission of the first Annual Plan, a PHA must include a
brief statement of the PHA's progress in meeting the mission and goals
described in the 5-Year Plan;
(2) A PHA must identify the basic criteria the PHA will use for
determining:
(i) A substantial deviation from its 5-Year Plan; and
(ii) A significant amendment or modification to its 5-Year Plan and
Annual Plan.
(3) A PHA must include such other information as HUD may request of
PHAs, either on an individual or across-the-board basis. HUD will
advise the PHA or PHAs of this additional information through advance
notice.
Sec. 903.9 May HUD request additional information in the Annual Plan
of a troubled PHA?
HUD may request that a PHA that is at risk of being designated as
troubled or is designated as troubled under section 6(j)(2) of the 1937
Act (42 U.S.C. 1437d(j)(2)), under the Public Housing Management
Assessment Program (24 CFR part 901) or under the Public Housing
Assessment System (24 CFR part 902) include its operating budget, and
include or reference any applicable memorandum of agreement with HUD or
other plan to improve performance and such other material as HUD may
prescribe.
Sec. 903.11 Are certain PHAs eligible to submit a streamlined Annual
Plan?
(a) Yes, the following PHAs may submit a streamlined Annual Plan,
as described in paragraph (b) of this section:
(1) PHAs that are determined to be high performing PHAs as of the
last annual or interim assessment of the PHA before the submission of
the 5-Year or Annual Plan;
(2) PHAs with less than 250 public housing units (small PHAs) and
that have not been designated as troubled under section 6(j)(2); and
(3) PHAs that only administer tenant-based assistance and that do
not own or operate public housing.
(b) All streamlined plans must provide information on how the
public
[[Page 56866]]
may reasonably obtain additional information on the PHA policies
contained in the standard Annual Plan, but excluded from their
streamlined submissions. A streamlined plan must include the following
information:
(1) For high performing PHAs, the streamlined Annual Plan must
include the information required by Sec. 903.7(a), (b), (c), (d), (g),
(h), (m), (n), (o), (p) and (r). The information required by
Sec. 903.7(m) must be included only to the extent this information is
required for PHA's participation in the public housing drug elimination
program and the PHA anticipates participating in this program in the
upcoming year.
(2) For small PHAs that are not designated as troubled or that are
not at risk of being designated as troubled under section 6(j)(2) of
the 1937 Act the streamlined Annual Plan must include the information
required by Sec. 903.7(a), (b), (c), (d), (g), (h), (k), (m), (n), (o),
(p) and (r). The information required by Sec. 903.7(k) must be included
only to the extent that the PHA participates in homeownership programs
under section 8(y). The information required by Sec. 903.7(m) must be
included only to the extent this information is required for the PHA's
participation in the public housing drug elimination program and the
PHA anticipates participating in this program in the upcoming year.
(3) For PHA's that administer only tenant-based assistance, the
streamlined Annual Plan must include the information required by
Sec. 903.7(a), (b), (c), (d), (e), (f), (k), (l), (o), (p) and (r).
Sec. 903.13 What is a Resident Advisory Board and what is its role in
development of the Annual Plan?.
(a) A Resident Advisory Board is a board or boards, as provided in
paragraph (b) of this section, whose membership consists of individuals
who adequately reflect and represent the residents assisted by the PHA.
(1) The role of the Resident Advisory Board (or Resident Advisory
Boards) is to assist and make recommendations regarding the development
of the PHA plan, and any significant amendment or modification to the
PHA plan.
(2) The PHA shall allocate reasonable resources to assure the
effective functioning of Resident Advisory Boards. Reasonable resources
for the Resident Advisory Boards must provide reasonable means for them
to become informed on programs covered by the PHA Plan, to communicate
in writing and by telephone with assisted families and hold meetings
with those families, and to access information regarding covered
programs on the internet, taking into account the size and resources of
the PHA.
(b) Each PHA must establish one or more Resident Advisory Boards,
as provided in paragraph (b) of this section.
(1) If a jurisdiction-wide resident council exists that complies
with the tenant participation regulations in 24 CFR part 964, the PHA
shall appoint the jurisdiction-wide resident council or its
representatives as the Resident Advisory Board, except that members
shall be added or another Resident Advisory Board formed to provide for
reasonable representation of families receiving tenant-based assistance
where such representation is required under paragraph (b)(2) of this
section. If a jurisdiction-wide resident council does not exist but
resident councils exist that comply with the tenant participation
regulations, the PHA shall appoint such resident councils or their
representatives to serve on or more Resident Advisory Boards, provided
that the PHA may require that the resident councils choose a limited
number of representatives.
(2) Where the PHA has a tenant-based assistance program of
significant size (where tenant-based assistance is 20% or more of
assisted households), the PHA shall assure that the Resident Advisory
Board or Boards has reasonable representation of families receiving
tenant-based assistance and that a reasonable process is undertaken to
choose this representation.
(3) Where or to the extent that resident councils that comply with
the tenant participation regulations do not exist, the PHA shall
appoint Resident Advisory Boards or Board members as needed to
adequately reflect and represent the interests of residents of such
developments; provided that the PHA shall provide reasonable notice to
such residents and urge that they form resident councils with the
tenant participation regulations.
(c) The PHA must consider the recommendations of the Resident
Advisory Board or Boards in preparing the final Annual Plan, and any
significant amendment or modification to the Annual Plan, as provided
in Sec. 903.21.
(1) In submitting the final plan to HUD for approval, or any
significant amendment or modification to the Plan to HUD for approval,
the PHA must include a copy of the recommendations made by the Resident
Advisory Board or Boards and a description of the manner in which the
PHA addressed these recommendations.
(2) Notwithstanding the 75-day limitation on HUD review, in
response to a written request from a Resident Advisory Board claiming
that the PHA failed to provide adequate notice and opportunity for
comment, HUD may make a finding of good cause during the required time
period and require the PHA to remedy the failure before final approval
of the plan.
Sec. 903.15 What is the relationship of the public housing agency
plans to the Consolidated Plan?
(a) The PHA must ensure that the Annual Plan is consistent with any
applicable Consolidated Plan for the jurisdiction in which the PHA is
located. The Consolidated Plan includes a certification that requires
the preparation of an Analysis of Impediments to Fair Housing Choice.
(1) The PHA must submit a certification by the appropriate State or
local officials that the Annual Plan is consistent with the
Consolidated Plan and include a description of the manner in which the
applicable plan contents are consistent with the Consolidated Plans.
(2) For State agencies that are PHAs, the applicable Consolidated
Plan is the State Consolidated Plan.
(b) A PHA may request to change its fiscal year to better
coordinate its planning with the planning done under the Consolidated
Plan process, by the State or local officials, as applicable.
Sec. 903.17 What is the process for obtaining public comment on the
plans?
(a) The PHA's board of directors or similar governing body must
conduct a public hearing to discuss the PHA plan (either the 5-Year
Plan and/or Annual Plan, as applicable) and invite public comment on
the plan(s). The hearing must be conducted at a location that is
convenient to the residents served by the PHA.
(b) Not later than 45 days before the public hearing is to take
place, the PHA must:
(1) Make the proposed PHA plan(s), the required attachments and
documents related to the plans, and all information relevant to the
public hearing to be conducted, available for inspection by the public
at the principal office of the PHA during normal business hours; and
(2) Publish a notice informing the public that the information is
available for review and inspection, and that a public hearing will
take place on the plan, and the date, time and location of the hearing.
(c) PHAs shall conduct reasonable outreach activities to encourage
broad public participation in the PHA plans.
[[Page 56867]]
Sec. 903.19 When is the 5-Year Plan or Annual Plan ready for
submission to HUD?
A PHA may adopt its 5-Year Plan or its Annual Plan and submit the
plan to HUD for approval only after:
(a) The PHA has conducted the public hearing;
(b) The PHA has considered all public comments received on the
plan;
(c) The PHA has made any changes to the plan, based on comments,
after consultation with the Resident Advisory Board or other resident
organization.
Sec. 903.21 May the PHA amend or modify a plan?
(a) A PHA, after submitting its 5-Year Plan or Annual Plan to HUD,
may amend or modify any PHA policy, rule, regulation or other aspect of
the plan. If the amendment or modification is a significant amendment
or modification, as defined in Sec. 903.7(r)(2), the PHA:
(1) May not adopt the amendment or modification until the PHA has
duly called a meeting of its board of directors (or similar governing
body) and the meeting, at which the amendment or modification is
adopted, is open to the public; and
(2) May not implement the amendment or modification, until
notification of the amendment or modification is provided to HUD and
approved by HUD in accordance with HUD's plan review procedures, as
provided in Sec. 903.23.
(b) Each significant amendment or modification to a PHA Plan
submitted to HUD is subject to the requirements of Secs. 903.13,
903.15, and 903.17.
Sec. 903.23 What is the process by which HUD reviews, approves, or
disapproves an Annual Plan?
(a) Review of the plan. When the PHA submits its Annual Plan to
HUD, including any significant amendment or modification to the plan,
HUD reviews the plan to determine whether:
(1) The plan provides all the information that is required to be
included in the plan;
(2) The plan is consistent with the information and data available
to HUD and with any applicable Consolidated Plan for the jurisdiction
in which the PHA is located; and
(3) The plan is not prohibited or inconsistent with the 1937 Act or
any other applicable Federal law.
(b) Disapproval of the plan. (1) HUD may disapprove a PHA plan, in
its entirety or with respect to any part, or disapprove any significant
amendment or modification to the plan, only if HUD determines that the
plan, or one of its components or elements, or any significant
amendment or modification to the plan:
(i) Does not provide all the information that is required to be
included in the plan;
(ii) Is not consistent with the information and data available to
HUD or with any applicable Consolidated Plan for the jurisdiction in
which the PHA is located; or
(iii) Is not consistent with applicable Federal laws and
regulations.
(2) Not later than 75 days after the date on which the PHA submits
its plan, or the date on which the PHA submits its significant
amendment or modification to the plan, HUD will issue written notice to
the PHA if the plan or a significant amendment or modification has been
disapproved. The notice that HUD issues to the PHA must state with
specificity the reasons for the disapproval. HUD may not state as a
reason for disapproval the lack of time to review the plan.
(3) If HUD fails to issue the notice of disapproval on or before
the 75th day after the PHA submits the plan, HUD shall be considered to
have determined that all elements or components of the plan required to
be submitted and that were submitted, and to be reviewed by HUD were in
compliance with applicable requirements and the plan has been approved.
(4) The provisions of paragraph (b)(3) of this section do not apply
to troubled PHAs. The plan of a troubled PHA must be approved or
disapproved by HUD through written notice.
(c) Designation of due date as submission date for initial plan
submissions. For purposes of the 75-day period described in paragraph
(b) of this section, the first 5-year and Annual Plans submitted by a
PHA will be considered to have been submitted on their due date
(December 1, 1999 or 75 days before the start of the PHA fiscal year,
as appropriate; see Sec. 903.3).
(d) Public availability of the approved plan. Once a PHA's plan has
been approved, a PHA must make its approved plan and the required
attachments and documents related to the plan, available for review and
inspection, at the principal office of the PHA during normal business
hours.
Sec. 903.25 How does HUD ensure PHA compliance with its plan?
A PHA must comply with the rules, standards and policies
established in the plans. To ensure that a PHA is in compliance with
all policies, rules, and standards adopted in the plan approved by HUD,
HUD shall, as it deems appropriate, respond to any complaint concerning
PHA noncompliance with its plan. If HUD should determine that a PHA is
not in compliance with its plan, HUD will take whatever action it deems
necessary and appropriate.
Dated: October 14, 1999.
Harold Lucas,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 99-27302 Filed 10-20-99; 8:45 am]
BILLING CODE 4210-33-P
