[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14946]
[[Page Unknown]]
[Federal Register: June 20, 1994]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 200, 905, 941, and 968
[Docket No. R-94-1724; FR-3645-I-01]
RIN 2577-AB42
Amendment to the Participation and Compliance Requirements for
Public Housing Agencies and Indian Housing Authorities
AGENCY: Office of the Secretary, HUD.
ACTION: Interim rule and request for public comments.
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SUMMARY: This interim rule deletes the current regulatory requirements
that public housing agencies and Indian housing authorities (referred
to as HAs) be subject to HUD's Previous Participation Review and
Clearance Procedures. The purpose of the amendment is to streamline the
contracting process for HAs and to enable them to obligate much needed
development and modernization funding in a more timely fashion.
DATES: Effective date: July 20, 1994.
Comments due date: August 19, 1994.
ADDRESSEES: Interested persons are invited to submit comments regarding
this interim rule to the Office of General Counsel, Rules Docket Clerk,
room 10276, Department of Housing and Urban Development, 451 Seventh
Street, SW., Washington, DC 20410. Facsimile (FAX) are not acceptable.
A copy of each communication submitted will be available for public
inspection and copying on weekdays between 7:30 a.m. and 5:30 p.m. at
the above address.
FOR FURTHER INFORMATION CONTACT: William C. Thorson, Director,
Maintenance and Supply Division, Office of Construction, Rehabilitation
and Maintenance, Department of Housing and Urban Development, 451
Seventh Street, SW., room 4124, Washington, DC 20410. Telephone:
(202)708-4703. This is not a toll-free number.
Indian housing authorities may contact Dom Nessi, Director, Office
of Native American Programs, Department of Housing and Urban
Development, 451 seventh Street, SW. room 4140, Washington, DC 20410.
Telephone (202) 708-1015. This is not a toll-free number.
Hearing or speech impaired individuals may contact this Office via
TDD number (202) 708-9300 (which is not a toll-free number) or 1-800-
877-8339 (which is a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act Statement
This interim rule does not impose any information collection
requirements. Instead, it would eliminate the existing requirement for
HAs and HA contractors to submit form HUD-2530, Previous Participation
Certificate, to HUD. As a result of this interim rule, there would be a
reduction in the information burden on HUD program participants.
II. Background
Currently, Subpart H of 24 CFR part 200 of the HUD regulations
makes principals participating in projects financed pursuant to the
United States Housing Act of 1937 subject to HUD approval under the
previous participation and review requirements set forth in that
Subpart. Principals include ``an individual, joint venture,
partnership, corporation, trust, nonprofit association, or any other
public or private entity proposing to participate, or participating, in
a project as sponsor, owner, prime contractor, Turnkey Developer,
management agent, nursing home administrator or operator, packager, or
consultant; and architects and attorneys who have any interest in the
project other than an arms-length fee arrangement for professional
services.''
Under Subpart H all principals are requested to sign personally a
certificate setting forth their record of previous participation in HUD
programs. These certifications are subject to review and either
approval or disapproval by the Department. An approval is required as a
precondition to participation by the principal in a specific project.
HAs frequently cite the previous participation approval requirement
as an obstacle to their timely obligation of funds. In reviewing the
matter, the Department has found that approximately 78,000 principals
were entered into HUD's previous participation automated system during
the last year. This figure includes principals from all programs
administered by the Assistant Secretary for Housing and the Assistant
Secretary for Public and Indian Housing. The automated system has
approved over 73,500 principals while approximately 4,500 principals
were referred to Headquarters for further review. About 1,500 of the
referrals (less than 2 percent) involved principals in the public/
Indian housing programs. Of the 1,500 public/Indian housing principals,
the majority were found to be approvable. Only a limited number were
disapproved, and most of the disapprovals were based on existing
debarments or suspensions. It should also be noted that HAs already
have the authority to disqualify contractors who are on the General
Services Administration Debarred and Suspended List.
This Departmental analysis of the previous participation process
raises serious questions regarding the benefits derived vs. the delays
caused in program implementation. Also taken into account in the
analysis was the fact that the Department's procurement regulations, at
24 CFR 85.36, require State and local grantees, including HAs, to award
contracts only to contractors possessing the ability to perform
successfully under the terms and conditions of their contract. In
assessing their ability to perform, consideration should be given by
grantees to such matters as contractor integrity, compliance with
public policy, record of past performance and financial and technical
resources. It was also noted that, in other similar State, local, or
Indian grant programs administered by the Department, such as the
Community Development Block Grant program, grantees are not subject, in
addition to the procurement procedures set forth at 24 CFR part 85, to
a second previous participation and compliance review by HUD. Instead,
the grantees are given the responsibility to make their own
determinations of contractor responsibility and are permitted to
execute contracts without obtaining prior HUD approval.
Given the very low number of disapprovals of public/Indian housing
principals compared to the relatively high dollar value of the program
(approximately $3 billion annually) and the urgent need to streamline
HUD procedures, the Department has concluded that the risk to the
Government of eliminating the previous participation approval for HAs
is extremely limited. Accordingly, we are amending the existing
regulations to remove public and Indian housing developments financed
under the U.S. Housing Act of 1937 from the Previous Participation and
Compliance Requirements set forth in 24 CFR part 200, Subpart H. HAs
will still be expected to determine, pursuant to 24 CFR 85.36, if a
contractor is responsible, based on its own records, the GSA Debarred
and Suspended list, the HUD Limited Denial of Participation List, and
any other information available to the HA.
III. Interim Rule
Due to the technical nature of this interim rule, the Department
has determined that a full notice and public comment procedure under 24
CFR part 10 of the United States Code is unnecessary and is therefore
issuing this document as an interim rule with public comment requested.
The interim rule relieves a regulatory restriction that adversely
affects and has proved to be an undue burden on the public housing
community. Further, the interim rule supports several of the
Department's key strategies for improving the way the Department's
programs operate, including deregulating programs to the extent
feasible, focusing on risk management and taking actions to speed the
expenditure of funds. For these reasons, it is desirable to make the
interim rule effective as soon as possible.
IV. Other Matters
A. Environmental Impact
The subject matter of this interim rule is categorically excluded
from HUD's environmental clearance procedures under 24 CFR 50.20(k).
The interim rule relates to administrative procedures whose content
does not constitute a development decision but only to the preparation
of reports and HUD management activities.
B. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the
provisions of this interim rule do not have ``federalism implications''
within the meaning of the Order. The interim rule does not, in any
substantive manner, change existing relationships between the Federal
government and State and local authorities.
C. Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this interim rule before publication and,
by approving it, certifies that it will not have a significant economic
impact on small entities. This interim rule only directly affects PHAs
and IHAs which are State and local governmental entities. The interim
rule should prove beneficial to PHAs and IHAs and should have no
negative impact upon their contractors.
D. Executive Order 12606, The Family
The General Counsel, as the Designated Official for Executive Order
12606, The Family, has determined that the provisions of this interim
rule do not have the potential for significant impact on family
formation, maintenance and general well-being within the meaning of the
Order.
E. Regulatory Agenda
This interim rule was listed as item 1677 in the Department's
Semiannual Agenda of Regulations published on April 25, 1994 (59 FR
20424, 20467) under Executive Order 12291 and the Regulatory
Flexibility Act as sequence number 1677 under Office of Public and
Indian Housing.
F. Catalog of Federal Domestic Assistance Program
The Catalog of Federal Domestic Assistance Program number is
14.852.
List of Subjects
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Housing standards, Incorporation by
reference, Lead poisoning, Loan programs-- housing and community
development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social security, Unemployment
compensation, Wages.
24 CFR Part 905
Aged, Energy conservation, Grant programs--housing and community
development, Grant programs--Indians, Indians, Individuals with
disabilities, Lead poisoning, Loan programs--housing and community
development, Loan programs--Indians, Low and moderate income housing,
Public housing, Reporting and recordkeeping requirements.
24 CFR Part 941
Grant programs--housing and community development, Loan programs--
housing and community development, Public housing.
24 CFR Part 968
Grant programs--housing and community development, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements.
Accordingly, 24 CFR parts 200, 905, 941 and 968 are amended as
follows:
PART 200--INTRODUCTION
1. The authority citation for 24 CFR part 200 continues to read as
follows:
Authority: 12 U.S.C. 1701-1715Z-18; 42 U.S.C. 3535(d).
2. Paragraph (a)(1) of Sec. 200.93 is revised to read as follows:
Sec. 200.93 Multifamily Participation Review Committee.
(a) Members. (1) The Director, Office of Lender Activities and Land
Sales Registration serves as Chairman and does not vote. The Committee
is composed of the following voting members or their designees
representing the Assistant Secretary for Housing- Federal Housing
Commissioner: the Director of the Office of Insured Multifamily Housing
Development; the Director of the Office of the Elderly and Assisted
Housing; the Director of the Office of Multifamily Housing Management;
the Director of the Office of Multifamily Preservation and Property
Disposition; the Director of the Previous Participation and Compliance
Division; and a designee of the Director of the Office of Lender
Activities and Land Sales Registration.
* * * * *
Sec. 200.213 [Amended]
3. Section 200.213 is amended by removing paragraph (d) and by
redesignating paragraph (e) as paragraph (d).
Sec. 200.217 [Amended]
4. Section 200.217 is amended by removing paragraph (a)(3), and by
redesignating paragraphs (a)(4) through (a)(8) as paragraphs (a)(3)
through (a)(7), respectively.
PART 905--INDIAN HOUSING PROGRAMS
5. The authority citation for 24 CFR part 905 continues to read as
follows:
Authority: 25 U.S.C. 450e(b), 42 U.S.C. 1437a, 1437aa, 1437bb,
1437cc, 1437ee, and 3535(d).
6. Paragraph (a)(3)(ii)(C) of Sec. 905.160 is revised to read as
follows:
Sec. 905.160 Procurement standards.
(a) * * *
(3) * * *
(ii) * * *
(C) That the contractor is not on the GSA List of Parties Excluded
from Federal Procurement and Nonprocurement Programs.
* * * * *
7-8. Section 905.642 is amended by removing paragraph (d)(4), and
by revising paragraph (g) to read as follows:
Sec. 905.642 Contracting requirements.
* * * * *
(g) Previous participation. An IHA shall ensure that the contractor
is not on the GSA List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
* * * * *
9. Paragraph (c)(2) of Sec. 905.681 is revised to read as follows:
Sec. 905.681 Conduct of modernization activities.
* * * * *
(c) * * *
(2) Previous participation. An IHA shall ensure that the contractor
is not on the GSA List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
* * * * *
PART 941--PUBLIC HOUSING DEVELOPMENT
10. The authority citation for 24 CFR part 941 continues to read as
follows:
Authority: 42 U.S.C. 1437b, 1437c, 1437g, and 3535(d).
11. Paragraph (a) of Sec. 941.502 is revised to read as follows:
Sec. 941.502 Project design and execution of contracts.
(a) General. The PHA, unless otherwise authorized by the field
office, shall submit interim or preliminary design documents for field
office approval prior to preparing and submitting the detailed
construction documents. The field office shall review both the design
documents and the construction documents for consistency with the
proposal, to determine that all HUD design and construction standards
have been met, and to ensure that the project development costs are
reasonable and are within the applicable cost limitations. Prior to
executing any contract, a PHA shall ensure that the contractor is not
on the GSA list of Parties Excluded from Federal Procurement and
Nonprocurement programs.
* * * * *
PART 968--PUBLIC HOUSING MODERNIZATION
12. The authority citation for 24 CFR part 968 continues to read as
follows:
Authority: 42 U.S.C. 1437d, 1437l and 3535(d).
13-14. Section 968.235 is amended by removing paragraph (d)(4), and
by revising paragraph (g) to read as follows:
Sec. 968.235 Contracting requirement.
* * * * *
(g) Previous participation. A PHA shall ensure that the contractor
is not on the GSA List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
* * * * *
15. Paragraph (c)(2) of Sec. 968.335 is revised to read as follows:
Sec. 968.335 Conduct of modernization activities.
* * * * *
(c) * * *
(2) Previous participation. A PHA shall ensure that the contractor
is not on the GSA List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
* * * * *
Dated: June 13, 1994.
Henry G. Cisneros,
Secretary.
[FR Doc. 94-14946 Filed 6-17-94; 8:45 am]
BILLING CODE 4210-32-P
