National Housing Law Project Housing Law Bulletin

The following are housing-related regulations and Notices that HUD and USDA have recently issued. For the most part, the summaries are taken directly from summary of the regulation in the Federal Register. The Notice summaries are taken from each Notice’s introductory paragraphs.

Copies of the cited documents may be secured from various sources, including (1) the Government Printing Office’s web site on the World Wide Web,/1/ (2) bound volumes of the Federal Register, (3) HUD Clips,/2/ (4) HUD,/3/ and (5) USDA’s/ Rural Development web page./4/ Citations are included with each document to help you secure copies.

Summary: This final rule adopts an interim rule, published on April 14, 1999 in the Federal Register by HUD. The interim rule (64 Fed. Reg. 18,538) revised HUD's fair housing complaint processing regulations. The interim rule revised these regulations in two ways. First, the sections of HUD regulations that addressed the filing of complaints were rewritten using plain language. Second, the sections of HUD regulations that addressed the investigation of complaints were moved to another place in the regulations. HUD revised these regulations to make the procedures for filing housing discrimination complaints easier to understand.

The interim rule solicited comments from the public on these revisions and included a 60-day public comment period. The public comment period closed on June 14, 1999. HUD received no comments on the interim rule. This final rule adopts the interim rule without change.

Effective Date: September 27, 1999.

Summary: This interim rule amends the regulations for the Section 8 Management Assessment Program (SEMAP) for the purpose of incorporating technical revisions recommended by the Office of Management and Budget to conform to requirements under the Single Audit Act Amendments of 1996. This interim rule revises the basis upon which HUD assigns ratings under eight SEMAP indicators. For the eight SEMAP indicators where the HUD verification method is the latest independent auditor (IA) annual audit report, this interim rule provides that the rating will be based on the housing agency (HA) SEMAP certification to HUD, rather than on statements in the annual audit report. Under this interim rule, SEMAP ratings will be subject to change after HUD receives the HA's annual audit report if the audit report contains information that the HA's SEMAP certification is not accurate.

Dates: Effective Date: August 25, 1999. Comments Due Date: September 24, 1999.

Summary: HUD's regulations at 24 C.F.R. Part 108 cover compliance procedures for affirmative fair housing marketing. As a result of internal HUD organizational changes, the offices referred to in these regulations no longer exist as they did when the regulations were issued. This final rule updates these references. It also incorporates language stating that all correspondence that could lead to an enforcement action against a small entity (such as audits, investigations, or compliance reviews) will notify the small entity of its right to comment to the National Small Business Ombudsman. This requirement is added in accordance with the Small Business Regulatory Enforcement Fairness Act.

Effective date: September 13, 1999.

Summary: On February 26, 1999 (64 Fed. Reg 9,617), HUD published its FY1999 SuperNOFA for HUD's Housing, Community Development, and Empowerment programs. The FY1999 SuperNOFA announced the availability of approximately $2.4 billion in HUD program funds covering 32 grant programs and program components administered by the following HUD

offices:

• the Office of Community Planning and Development (CPD)
• the Office of Housing-Federal Housing Administration (FHA)
• the Office of Public and Indian Housing (PIH)
• the Office of Policy Development and Research (PD&R)
• the Office of Fair Housing and Equal Opportunity (FH&EO)
• the Office of Lead Hazard Control

On May 18, 1999 (64 Fed. Reg. 27,120), HUD published a notice that extended the deadline for certain programs in the SuperNOFA to accommodate areas that were designated disaster areas as a result of the tornados in early May 1999. The May 18, 1999 notice republished for the convenience of the readers the introductory section of the SuperNOFA to reflect updates to programs and application due date changes.

HUD advised in the introduction section, in both the February 26, 1999 SuperNOFA and in the May 18, 1999 extension notice, that the SuperNOFA application rating system provides for up to two bonus points for eligible activities/projects that the applicant proposes to be located in high performing federally designated Empowerment Zones (EZs) or Enterprise Communities (ECs). HUD also advised that it would publish in the Federal Register the list of high performing EZs and ECs.

This notice provides the list of high performing EZ and ECs, both urban and rural.

The list is attached as Appendix A to this notice.

Dated: August 2, 1999.

64 Fed. Reg. 42,956-42,957 (Aug. 6, 1999)

Summary: This document provides guidance on certain admission and occupancy requirements for those public housing agencies that must implement changes in the United States Housing Act of 1937 regarding rents that are effective October 1, 1999.

Effective Date: August 6, 1999.

Summary: The purpose of ROSS is to link services to public and Indian housing residents by providing grants for:

• supportive services
• resident empowerment activities
• activities to assist residents in becoming economically self-sufficient.

Approximately $66.6 million is being made available for the ROSS Program under this NOFA.

Grants may be made to Public Housing Agencies (PHAs) on behalf of public housing residents, or directly to resident management corporations, resident councils, or resident organizations (including nonprofit entities supported by residents). Intermediary Resident

Organizations (IROs) and those non-profits that operate associations and networks that administer programs benefitting public and assisted resident organizations are also eligible recipients for ROSS funding categories where specifically noted in this NOFA. Indian Tribes

(Tribes) and Tribally designated housing entities (TDHEs) are eligible for grants under the Technical Assistance/Training Support for Resident Organizations and Resident Service Delivery Models (RSDM) funding categories.

All grants require a match of at least 25 percent of the grant amount. This match does not have to be a cash match. It can be in-kind and/or cash contributions.

Application Deadline: Completed applications (one original and two copies) must be

submitted by the time described in Section I. of this NOFA, below, on: October 12, 1999 for Resident Management and Business Development; October 12, 1999 for Capacity Building and/or Conflict Resolution; and November 8, 1999 for Resident Service Delivery Models. Service Coordinators applications were due September 9, 1999.

Summary: This document announces the cancellation of the meeting of the Negotiated Rulemaking Committee on Operating Fund Allocation, which had been scheduled to take place on August 11 and August 12, 1999. This document also announces the dates, time, and location of the September committee meeting. These ongoing meetings are sponsored by HUD for the

purpose of discussing and negotiating a proposed rule that would change the current method of determining the payment of operating subsidies to public housing agencies (PHAs).

Dates: The September committee meeting was held on September 14 and September 15, 1999.

Summary: On May 3, 1999, HUD issued a Request for Proposals (RFP) pertaining to Contract Administrators for Project-Based Section 8 Housing Assistance Payments (HAP) Contract. The RFP was published in the Federal Register on May 19, 1999, to ensure a wider dissemination. Through the RFP, HUD is seeking sources interested in providing contract administration services for project-based Housing Assistance Payment Contracts under Section 8. The RFP solicitation is not a formal procurement within the meaning of the Federal Acquisition Regulations (FAR) but follows many of those principles. HUD amended the RFP on August 2, 1999. This notice publishes the amendments already issued for the purpose of wider dissemination.

Offerers must submit technical and cost proposals prior to the RFP deadline. Proposals in response to the RFP were due to the HUD Denver Multifamily Hub at 5:00 pm MDT Wednesday, August 25, 1999.

Summary: Under the Department of Housing and Urban Development Reform Act of 1989 (the "HUD Reform Act"), HUD is required to make public all approval actions taken on waivers of regulations. This notice is the 33rd in a series, published on a quarterly basis, providing notification of waivers granted during the preceding reporting period. The purpose of this notice is to comply with the requirements of Section 106 of the HUD Reform Act.

Summary: The Rural Housing Service (RHS) corrects a notice published June 16, 1999 (64 Fed. Reg. 32,373). This action is taken to correct the maximum allowable interest rate to be negotiated between the lender and the applicant. Accordingly, the notice published June 16, 1999 (64 Fed. Reg. 32,373), is corrected as follows:

• On page 32,374 in the first column, Item V.A. (4), the introductory text prior to the table should read "Loans with interest rates less than the maximum allowable 250 basis points over the 30 Year Treasury Bond Yield as published in the Wall Street Journal as of the business

day previous to the business day the rate was set, will be awarded points as follows:"

• On page 32,374 in the third column, Item VI. C. "Maximum Interest Rate," the text "30-year Treasury Bond Rate" should read "30-year Treasury Bond Yield."

Dated: July 21, 1999.

Summary: The purpose of this notice is to provide match reductions for HOME Program participating jurisdictions (PJs) that satisfy the distress criteria in accordance with 24 C.F.R. 92,222 of the HOME Program regulations. This notice also describes procedures for notifying Headquarters of match reductions approved by Field Offices for Presidentially Declared Disasters.

Summary: The Department of Justice (DOJ) published in the Federal Register on May 26, 1999 (64 Fed. Reg. 28,676) a proposed rule that establishes clear standards governing whether an alien is inadmissible to the United States, ineligible to adjust immigration status, or has become deportable, on the grounds that he or she is likely to be or is a "public charge." The Immigration and Naturalization Service (INS) also published Field Guidance in the same Federal Register (64 Fed. Reg. 28,689), and the Department of State (DOS) has issued a cable to all embassies, implementing immediately the policy set forth in the proposed rule.

There has been some confusion among immigrant families, and service and benefit providers, regarding how the receipt of different benefits and services by immigrants and their family members will be treated for public charge purposes. The proposed rule, along with the INS guidance, clarifies the limited number of benefits that may be considered by immigration officials in making public charge determinations.

With regard to the Department of Housing and Urban Development (HUD), the effect of the proposed rule and the INS guidance is to provide that an otherwise eligible non-citizen can receive benefits/services under HUD's programs and such receipt will not be considered by immigration officials as part of a public charge determination.

The DOJ proposes to define public charge to mean an alien who has become (for purposes of deportation) or is likely to become (for purposes of admissibility or adjustment) "primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense."

Cash benefits for income maintenance include the following:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF), but not including

supplemental cash benefits excluded from the term "assistance" under TANF program rules or any non-cash benefits and services provided by the TANF program

• State and local cash benefit programs that are for the purpose of income maintenance (often called "General Assistance" but which may exist under other names)

The sole exception to the focus on cash assistance is an instance in which Medicaid or a related program would meet this definition by paying for the cost of a person's institutionalization for long-term care.

The proposed Rule and Guidance clarifies that receipt of cash welfare assistance (SSI, TANF, or State/local equivalents) cannot automatically result in a public charge inadmissibility determination. The INS and DOS officers must still apply a "totality of the circumstances" test which may include receipt of cash assistance for income maintenance purposes, but also must include several mandatory factors, including age, health, family status, assets and resources, financial status, education, and skills.

The INS also advises the following:

• Deportations on public charge grounds are rare and are expected to remain so.
• An alien's mere receipt of public cash assistance for income maintenance will not make him or her deportable as a public charge.
• The INS guidance reiterates other long-standing legal requirements that must also be met before a public charge deportation can occur.

HUD's programs are not listed above. They also are not identified in the proposed rule or the INS guidance as providing a cash benefit for income maintenance purposes. Accordingly, receipt of benefits/services under HUD's programs will not be considered by immigration officials as part of a public charge determination.

Because this policy area is complicated, HUD encourages grantees, and state and local agencies, to become familiar with the proposed Rule and Field Guidance published in the Federal Register. A short summary of the new policy is attached, along with a set of frequently asked questions and answers, prepared by the INS, to help grantees, and State and local agencies, better understand the details of these new public charge policies. The summary will also tell them which non-citizens may be affected. The HUD contact for further clarification is Helene DeVous of Business Products on (202) 708-2866 ext. 2761.

Form HUD 272-I--Federal Cash Transactions Report ONAP; Notice

Summary: This notice transmits form HUD 272-I, and the instructions for reporting Indian Housing Block Grant (IHBG) funds under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA). The requirements for reporting NAHASDA funds are found at 24 C.F.R. 1000.26 and Part 85.41(c).

Form HUD 272-I will not be used to report expenditures under programs other than NAHASDA (i.e., the Indian Community Development Block Grant, HOME or Drug Elimination). The reporting requirements for each of these programs can be found in the applicable regulations.

Recipients of IHBG funds and unobligated United States Housing Act of 1937 (UNDS37 Act) funds are required to use form HUD- 272-I to report expended funds to the Area Office of Native American Programs (ONAP). Reports are due to the Area ONAP within 30 calendar days of the end of each quarter (i.e., April 30th, July 30th, October 30th, and January 30th). Requirements for reporting IHBG funding become effective at the time IHBG funds are obligated by the recipient.

Recipients will receive reminder letters from the Line of Credit Control System (LOCCS) that reports for respective programs are due to their Area ONAP. A lack of notification by LOCCS does not release the recipient from reporting requirements. Failure to submit form HUD 272-I by the due date may cause ONAP to proceed with actions in accordance with 24 C.FR. 1,000 Subpart F on the grant until the required form is received and the Area ONAP enters the receipt into LOCCS.

For the UNDS37 Act program funds that were obligated prior to the implementation of NAHASDA, recipients shall follow the requirements in effect at the time the funds were awarded. See NAHASDA Guidance 98-04 for reporting requirements for UNDS37 Act and IHBG funds.

Summary: The purpose of this notice is to provide guidance to public housing agencies/Tribally Designated Housing Entities (THDEs), hereafter called HAs, regarding their legal obligation and compliance responsibilities under local, state and federal requirements for handling asbestos-containing-materials (ACMs) in public housing developments undergoing modernization or demolition.

Undertaking modernization actions where asbestos is present is subject to numerous and growing regulations at all levels of government. Careless or illegal handling of ACMs can subject modernization contractors, workers, residents and visitors to health hazards. Improper or unlawful handling of asbestos can place the contractor and HAs and property owners who are not

housing agencies in a position of serious civil and even criminal liability.

Summary: This Notice establishes the basis upon which the Department will determine if a recipient of Indian Housing Block Grant (IHBG) funds, authorized by the Native American

Housing Assistance and Self-Determination Act of 1996 (NAHASDA) (Pub. L. 104-330), has the administrative capacity to undertake Indian Housing Block Grant (IHBG) program activities in accordance with the program regulations at 24 C.F.R. Part 1,000.

Evaluation of a recipient's administrative capacity in the IHBG program is part of the Office of Native American Programs’ (ONAP) oversight responsibilities under the NAHASDA and program regulations at 24 C.F.R. Part 1,000.

This oversight responsibility generally arises in three ways:

• Section 1000.6 provides that IHBG recipients must have the administrative capacity to undertake the affordable housing activities proposed. This capacity includes the existence of

adequate systems of internal control necessary to administer these activities effectively without waste, fraud, or mismanagement.

• Pursuant to section 405 of NAHASDA and §1000.520, ONAP also reviews the performances of each recipient at least annually. ONAP’s review includes examining the recipient's continuing capacity to carry out eligible activities in a timely manner.
• In addition, a recipient must demonstrate, pursuant to §1000.58, that it has the administrative capacity and controls to responsibly manage the investment of IHBG funds. This Notice addresses the first two situations. Determinations of administrative capacity which deal with the investment of IHBG funds in accordance with §1000.58 are addressed in a separate Notice PIH 99-4 (TDHEs) entitled "Administrative Requirements for Investing Indian Housing Block Grant Funds."

Summary: This notice transmits information announcing the availability of an electronic template that PHAs must use to complete and submit the PHA 5-Year and Annual Plan (the PHA

Plans). The notice also contains additional guidance for completing the PHA Plans pursuant to the Interim Rule issued on February 18, 1999. The template, instructions and guidance referenced and transmitted in this notice will be made available via HUD's new PHA Plans webpage at: http://www.hud.gov/pih/pha/plans/phaps-home.html. This website will also be used to transmit additional information about the PHA Plans, as it becomes available.

This notice also serves as notification that the FY2000 submission processes for the Capital Fund Program and the Public Housing Drug Elimination Program (PHDEP) Plan for FY2000 have been combined into the PHA Plan process. Information regarding this new submission process is stated in Attachment B, "Instructions and Supplemental Guidance for Preparation and Submission of PHA Plans."

Section 511 of the Quality Housing and Work Responsibility Act of 1998 (QHWRA) created the public housing agency plans--a 5-year plan and an annual plan. The 5-year plan describes the mission of the agency and the agency's long range goals and objectives for achieving its mission over the subsequent five years. The annual plan provides details about the agency's immediate operations, program participants, programs and services, as well as the agency'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 agencies to examine their existing operations and needs, and to design long-range and short-range strategies to address those needs. Through this planning mechanism, agencies will make more efficient use of federal assistance, more effectively operate their programs, and better serve their residents.

On February 18, 1999, HUD issued an Interim Rule implementing the PHA Plan. In that 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 [which would] make for easier reading by HUD, the PHAs, and, most importantly, the public housing residents and the public." During the public comment period, which closed April 19, 1999, and the

public forum process (ongoing), HUD received several requests for additional clarification and guidance on the implementation of the Plan(s), including requests that HUD make software for completing the plans available at no cost to agencies.

Summary: This notice supersedes Notice PIH-98-63 (TDHE) same subject, dated December 18, 1998. This notice transmits the schedule for the maximum amount of funds which may be used per unit for DC&E costs of developing affordable housing under NAHASHA. Minor changes were made to the schedules to update construction costs. The content of notice PIH 98-63 (TDHE) has been incorporated into this notice and provides a history and description

of the DC&Es, as well as procedures for requesting a variance. Because of recent increases in the cost of construction, we are publishing new cost limits in less than a year in order to provide the most current information to tribes/tribally designated housing entities (TDHEs). The requirement for the development and imposition of these limits is found in 24 C.F.R. 1,000.156 of the Indian Housing Block Grant (IHBG) regulations published on March 12, 1998.

Summary: This notice provides the new housing choice voucher rent formula (including the manufactured home space rent formula) and special instructions for completing form HUD-50058, Family Report. This form is for Section 8 families assisted under the housing choice voucher program under the interim rule for the statutory merger of the Section 8 certificate and voucher programs (the "merger rule").

Summary: The purpose of this Notice is to describe the responsibilities of the recipient and of the HUD Area Office of Native American Programs (ONAP) if the tribe does not assume

environmental review responsibilities under 24 C.F.R. Part 58--Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities. This Notice also defines the information (see Appendix A) to be provided by recipients to the HUD Area ONAP Administrator for compliance with environmental review responsibilities under 24 C.F.R. Part 50--Protection and Enhancement of Environmental Quality (hereafter Part 50). The

authority for Indian Housing Block Grant (IHBG) environmental review is Section 105 of the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) (25 U.S.C. 4115).

The Indian Housing Plan (IHP) submitted by, or on behalf of the Tribe, indicates when the Tribe selects HUD to fulfill the environmental review responsibilities for the IHBG assisted

activities under the provisions of Part 50. As stated in Section 1000.20(a) of the program regulations for the IHBG Program, a HUD environmental review must be completed for any IHBG activities not excluded from review under Section 50.19(b) before a recipient may acquire, rehabilitate, convert, lease, repair or construct property, or commit HUD or local funds used in conjunction with such IHBG assisted activities with respect to the property.

Tribes (or Tribally Designated Housing Entities (TDHEs)) that select HUD to fulfill the environmental review responsibility submit an environmental assurance in accord with Section 50.3(h).

This Notice uses the terms and thresholds in Part 50 to identify when a particular type of activity is subject to compliance with environmental review procedures. This Notice does not address the eligibility of any activity under the IHBG program. Affordable housing activities that are eligible for IHGB funding are set forth in Section 202 of NAHASDA.

Summary: This notice outlines the policies and procedures regarding application, preparation and submission by Public Housing Agencies (herein referred to as PHAs) and application processing and fund reservation/obligation by HUD for PHAs with fewer than 250 units. Federal Fiscal Year (FFY) 1999 is a transition year for these smaller PHAs from a competitive Comprehensive Improvement Assistance Program (CIAP) to a formula grant under the new Capital Fund as authorized by the Quality Housing and Work Responsibility Act (QHWRA) of 1998.

Notes

1    At http:/ /www.access.gpo.gov / su docs.

2    At http:/ /www.hudclips.org/cgi/index.cgi

3    To order Notices and Handbooks from HUD, call (800) 767-7468 or fax (202) 708-2313.

4    At http:/ /www.rdinit.usda.gov /regs/.