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75954 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
DEPARTMENT OF HOUSING AND the Regulations Division, Office of I. Background—HEARTH Act
URBAN DEVELOPMENT General Counsel, Department of On May 20, 2009, the President
Housing and Urban Development, 451 signed into law ‘‘An Act to Prevent
24 CFR Parts 91 and 576 7th Street SW., Room 10276, Mortgage Foreclosures and Enhance
[Docket No. FR–5474–I–01] Washington, DC 20410–0500. Mortgage Credit Availability,’’ which
2. Electronic Submission of became Public Law 111–22. This law
RIN 2506–AC29
Comments. Interested persons may implements a variety of measures
Homeless Emergency Assistance and submit comments electronically through directed toward keeping individuals
Rapid Transition to Housing: the Federal eRulemaking Portal at and families from losing their homes.
Emergency Solutions Grants Program http://www.regulations.gov. HUD Division B of this law is the HEARTH
and Consolidated Plan Conforming strongly encourages commenters to Act, which consolidates and amends
Amendments submit comments electronically. three separate homeless assistance
Electronic submission of comments programs carried out under title IV of
AGENCY: Office of the Assistant allows the commenter maximum time to the McKinney-Vento Homeless
Secretary for Community Planning and prepare and submit a comment, ensures Assistance Act (42 U.S.C. 11371 et seq.)
Development, HUD. timely receipt by HUD, and enables (McKinney-Vento Act) into a single
ACTION: Interim rule. HUD to make them immediately grant program that is designed to
available to the public. Comments improve administrative efficiency and
SUMMARY: The Homeless Emergency enhance response coordination and
submitted electronically through the
Assistance and Rapid Transition to effectiveness in addressing the needs of
http://www.regulations.gov Web site can
Housing Act of 2009 (HEARTH Act), homeless persons. The HEARTH Act
be viewed by other commenters and
enacted into law on May 20, 2009, codifies into law and enhances the
interested members of the public.
consolidates three of the separate Continuum of Care planning process,
Commenters should follow the
homeless assistance programs the coordinated response for addressing
instructions provided on that site to
administered by HUD under the the needs of homelessness established
McKinney-Vento Homeless Assistance submit comments electronically.
administratively by HUD in 1995. The
Act into a single grant program, and Note: To receive consideration as public single Continuum of Care program
revises the Emergency Shelter Grants comments, comments must be submitted established by the HEARTH Act
program and renames it as the through one of the two methods specified consolidates the following programs: the
Emergency Solutions Grants (ESG) above. Again, all submissions must refer to
Supportive Housing program, the
program. The HEARTH Act also codifies the docket number and title of the rule.
Shelter Plus Care program, and the
into law the Continuum of Care Moderate Rehabilitation/Single Room
planning process, a longstanding part of No Facsimile Comments. Facsimile
(FAX) comments are not acceptable. Occupancy program. The Emergency
HUD’s application process to assist Shelter Grants program is renamed the
homeless persons by providing greater Public Inspection of Public Emergency Solutions Grants program
coordination in responding to their Comments. All properly submitted and revised to broaden existing
needs. comments and communications emergency shelter and homelessness
This interim rule revises the submitted to HUD will be available for prevention activities and to add short-
regulations for the Emergency Shelter public inspection and copying between and medium-term rental assistance and
Grants program by establishing the 8 a.m. and 5 p.m. weekdays at the above services to rapidly re-house homeless
regulations for the Emergency Solutions address. Due to security measures at the people. In addition the new Rural
Grants program, which replaces the HUD Headquarters building, an advance Housing Stability program replaces the
Emergency Shelter Grants program. The appointment to review the public Rural Homelessness Grant program.
change in the program’s name, from comments must be scheduled by calling HUD commenced the process to
Emergency Shelter Grants to Emergency the Regulations Division at (202) 708– implement the HEARTH Act with a
Solutions Grants, reflects the change in 3055 (this is not a toll-free number). proposed rule, which was published on
the program’s focus from addressing the Individuals with speech or hearing April 20, 2010, (75 FR 20541) and titled
needs of homeless people in emergency impairments may access this number ‘‘Defining Homeless.’’ That proposed
or transitional shelters to assisting through TTY by calling the Federal rule sought to clarify and elaborate upon
people to quickly regain stability in Relay Service at (800) 877–8339. Copies the new McKinney-Vento Act
permanent housing after experiencing a of all comments submitted are available definitions for ‘‘homeless’’ and
housing crisis and/or homelessness. for inspection and downloading at ‘‘homeless individual with a disability.’’
DATES: Effective date: January 4, 2012. http://www.regulations.gov. In addition, the proposed rule included
Comment Due Date. February 3, 2012. recordkeeping requirements related to
FOR FURTHER INFORMATION CONTACT: Ann
ADDRESSES: Interested persons are
Marie Oliva, Director, Office of Special the revised definition of ‘‘homeless.’’
invited to submit comments regarding Needs Assistance Programs, Office of The final rule for the ‘‘homeless’’
this rule to the Regulations Division, Community Planning and Development, definition and the related recordkeeping
Office of General Counsel, 451 7th Department of Housing and Urban requirements appears elsewhere in
Street SW., Room 10276, Department of today’s Federal Register. Today’s
Development, 451 7th Street SW.,
Housing and Urban Development, publication of the final rule for the
Washington, DC 20410–7000; telephone
Washington, DC 20410–0500. homeless definition and this interim
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number (202) 708–4300 (this is not a
Communications must refer to the above rule for the Emergency Solutions Grants
toll-free number). Hearing- and speech-
docket number and title. There are two program, which includes corresponding
impaired persons may access this
methods for submitting public amendments to the Consolidated Plan,
number through TTY by calling the
comments. All submissions must refer will be followed by separate proposed
Federal Relay Service at (800) 877–8339
to the above docket number and title. rules for the Continuum of Care program
(this is a toll-free number).
1. Submission of Comments by Mail. and the Rural Housing Stability program
Comments may be submitted by mail to SUPPLEMENTARY INFORMATION: to implement other HEARTH Act
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75955
amendments to the McKinney-Vento program, to establish the regulations for rule published elsewhere in today’s
Act. HUD will also soon publish a the ESG program, a permanent program. Federal Register. Note that the new
proposed rule establishing regulations Because HPRP activities will continue, definition of ‘‘homeless’’ and the related
for Homeless Management Information the interim rule is also directed at recordkeeping requirements are not
Systems (HMIS). The definition of ensuring continuity between HPRP and subject to further public comment.
‘‘homeless’’ in this interim rule for the ESG. This interim rule provides HPRP Therefore, the new definition and
Emergency Solutions Grants program program recipients with an opportunity related reporting requirements are not
and the corresponding recordkeeping to comment on the policies included in this interim rule, so as to
requirements are not the subject of implemented under HPRP and avoid any confusion that HUD is
further public comment. Public continued under the ESG program. reopening these provisions for
comment for this definition and the This interim rule also implements additional public comment through this
corresponding recordkeeping HUD’s longstanding interest in making rule.
requirements were addressed in the its McKinney-Vento Act programs
consistent, where appropriate, with A. Emergency Solutions Grants Program
Defining Homeless final rule published
other HUD programs such as the Regulations (24 CFR Part 576)
elsewhere in today’s Federal Register.
Community Development Block Grant This interim rule amends the
II. This Interim Rule (CDBG) program, the HOME Investment regulations at 24 CFR part 576, which
This interim rule revises the Partnerships (HOME) program, and the have governed the Emergency Shelter
regulations for the Emergency Shelter Housing Choice Voucher (HCV) Grants program and will govern, as
Grants program at 24 CFR part 576 by program. To the extent that similar revised, the Emergency Solutions Grant
establishing the new requirements for requirements in these programs can be (ESG) program.
the Emergency Solutions Grants made consistent, communities may be This interim rule reflects HUD’s
program and making corresponding better able to implement coordinated comprehensive review and revision of
amendments to HUD’s Consolidated plans and projects to prevent and end part 576. In addition to making changes
Plan regulations found at 24 CFR part homelessness, while decreasing the to implement the HEARTH Act
91. The Emergency Solutions Grants administrative burden for recipients and amendments to the McKinney-Vento
(ESG) program builds upon the existing subrecipients. Act, this interim rule includes changes
Emergency Shelter Grants program, but This interim rule will become to reorganize the regulations in part 576
places greater emphasis on helping effective 30 days after today’s date. to make the regulations more intuitive
people quickly regain stability in Grantees are receiving two allocations of and user-friendly; removes the cross-
permanent housing after experiencing a Fiscal Year (FY) 2011 funds. The first references to the McKinney-Vento Act;
housing crisis and/or homelessness. The allocation was made and is subject to provides greater elaboration of existing
key changes that reflect this new the Emergency Shelter Grants program requirements where necessary or useful;
emphasis are the expansion of the regulations. The second allocation will updates requirements to reflect changes
homelessness prevention component of be made after publication of this to the underlying law, such as the
the program and the addition of a new Emergency Solutions Grants program removal of Indian tribes as eligible
rapid re-housing assistance component. rule and must exclusively be used for grantees/recipients; builds from HUD’s
The homelessness prevention homelessness prevention assistance, experience in developing and
component includes various housing rapid re-housing assistance, Homeless administering both the existing
relocation and stabilization services and Management Information Systems Emergency Shelter Grants program and
short- and medium-term rental (HMIS), and administration, in HPRP; aligns the ESG program with the
assistance to help people avoid accordance with this interim rule. Each new Continuum of Care and Rural
becoming homeless. The rapid re- recipient may use up to 7.5 percent of Housing Stability programs, to the
housing assistance component includes its total FY 2011 amount for extent feasible, in order to facilitate
similar services and assistance to help administrative costs as provided under coordination and foster efficient use of
people who are homeless move quickly this interim rule. In addition, if a resources; and align the requirements of
into permanent housing and achieve recipient wishes to reprogram some or the ESG program with HUD’s other
stability in that housing. all of its first allocation funds to carry formula programs and rental assistance
In developing regulations for the ESG out homelessness prevention assistance, programs, to the extent feasible and
program, HUD is relying substantially rapid re-housing assistance, or HMIS, beneficial, in order to increase
on its experience with its the recipient must amend its efficiency and coordination among the
administration, and that of HUD’s consolidated plan in accordance with different programs.
grantees, of the Homelessness the requirements of the consolidated In developing the regulations for the
Prevention and Rapid Re-Housing plan regulations as amended by this ESG program and other programs
Program (HPRP), authorized and funded interim rule. authorized under title IV of the revised
by the American Recovery and The following sections of this McKinney-Vento Act, HUD has sought
Reinvestment Act of 2009 (Recovery overview highlight significant to provide grantees with the
Act) (Pub. L. 111–5, approved February differences between the interim rule and programmatic framework to: maximize
17, 2009). The Recovery Act language the existing regulations for the communitywide planning and strategic
that created HPRP was directly drawn Emergency Shelter Grants program. This use of resources to prevent and end
from the proposed HEARTH Act, which overview does not address every homelessness; improve coordination
was under consideration by Congress at regulatory provision of the interim rule. and integration with mainstream
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the time the Recovery Act was enacted. However, the reader is requested to services to marshal all available
HPRP is the first HUD program to fund, review the entire interim rule, and HUD resources, capitalize on existing
on a large scale ($1.5 billion), welcomes comment on all aspects of the strengths, and increase efficiency;
homelessness prevention and rapid re- rule. As previously mentioned, the improve coordination within each
housing assistance. HUD is therefore definition of ‘‘homeless’’ and the community’s homeless services,
drawing from its recent program recordkeeping requirements related to including services funded by other
experience with HPRP, a temporary that definition are included in a final programs targeted to homeless people;
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75956 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
build on lessons learned from years of To further ensure consistency of publicly funded institution or system of
practice and research, so that more interpretation, the interim rule also care, such as a health-care facility,
resources are invested in demonstrated clarifies several of the risk factors that mental health facility, foster care or
solutions to end homelessness, such as pertain to the first category of other youth facility, or correction
rapid re-housing; expand resources and individuals and families who qualify as program or institution.’’ This language
services available to prevent ‘‘at risk of homelessness.’’ As provided is derived from section 406 of the
homelessness; realign existing programs under the statute, the pertinent risk McKinney-Vento Act to include all
and systems to focus on shortening factors are as follows: (1) Has moved public institutions and systems of care
homelessness; direct funding to the frequently because of economic reasons; from which people may be discharged
most critical services to help people (2) is living in the home of another into homelessness.
achieve long-term housing stability and because of economic hardship; (3) has The seventh risk factor, ‘‘otherwise
avoid becoming homeless again; been notified that their right to occupy lives in housing that has characteristics
standardize eligibility determinations their current housing or living situation associated with instability and an
and improve the targeting of resources will be terminated; (4) lives in a hotel increased risk of homelessness,’’
to help those most in need; improve or motel; (5) lives in severely remains as is, but requires the particular
data collection and performance overcrowded housing; (6) is exiting an housing characteristics to be identified
measurement; and allow each institution; or (7) otherwise lives in in the recipient’s HUD-approved
community to tailor its program to the housing that has characteristics consolidated plan. This requirement
particular strengths and challenges associated with instability and an strives to balance the need for consistent
within that community. increased risk of homelessness. application of this risk factor with
Under the interim rule, the words sensitivity to the differences in the
General Provisions (Subpart A) ‘‘has moved frequently’’ in the first risk conditions of each community’s housing
The major changes to this subpart factor are interpreted as ‘‘2 or more stock.
include new definitions required by the times during the 60 days immediately The second and third categories under
HEARTH Act amendments and preceding the application for which individuals and families may
revisions to existing definitions where homelessness prevention assistance.’’ qualify as ‘‘at risk of homelessness’’ are
needed to conform to the new program This interpretation is consistent with based on the last sentence of section
requirements or to improve HUD’s interpretation of similar language 401(1) of the McKinney-Vento Act,
administration of the program. in the ‘‘homeless’’ definition. However, which provides that the term ‘‘at risk of
HUD is still considering whether and homelessness’’ includes all families
Definitions (Section 576.2)
how to clarify ‘‘economic reasons’’ in with children and youth defined as
At Risk of Homelessness. The interim the first risk factor and ‘‘economic homeless under other federal statutes.
rule clarifies the definition of ‘‘at risk of hardship’’ in the second risk factor. The term ‘‘families with children and
homelessness’’ under section 401(1) of HUD believes at times, ‘‘economic youth defined as homeless under other
the McKinney-Vento Act. The definition reasons’’ and ‘‘economic hardship’’ can federal statutes’’ is defined under
includes three categories under which have the same meaning, HUD section 401(7) of the McKinney-Vento
an individual or family may qualify as specifically requests comments Act. Section 401(7) provides that this
‘‘at risk of homelessness.’’ For an regarding these terms. term means ‘‘any children or youth that
individual or family to qualify as ‘‘at The third risk factor, ‘‘has been are defined as ‘homeless’ under any
risk of homelessness’’ under the first notified that their right to occupy their Federal statute other than this subtitle,
category of the definition, the individual current housing or living situation will but are not defined as homeless under
or family must meet two threshold be terminated,’’ is clarified by adding section 103, and shall also include the
criteria and must exhibit one or more that the notice has to be in writing and parent, parents, or guardian of such
specified risk factors. The two threshold that the termination has to be within 21 children or youth under subtitle B of
criteria, as provided in the statute, are: days after the date of application for title VII this Act (42 U.S.C. 11431 et
(1) The individual or family has income assistance. seq.).’’
below 30 percent of median income for The fourth risk factor, ‘‘lives in a hotel For the sake of clarity, the definition
the geographic area; and (2) the or motel,’’ is clarified by adding ‘‘and of ‘‘at risk of homelessness’’ this interim
individual or family has insufficient the cost of the hotel or motel is not paid rule uses separate categories to describe
resources immediately available to for by federal, state, or local government the children and youth defined as
attain housing stability. Under the programs for low-income individuals or homeless under other federal statutes
interim rule, the first criterion refers by charitable organizations.’’ This and to describe the children and youth
specifically to annual income and to change is being made to avoid overlap defined as homeless under subtitle B of
median family income for the area, as with the conditions under which an title VII of the McKinney-Vento Act and
determined by HUD. The second individual or family living in a hotel or their parent(s) or guardian(s). In light of
criterion is interpreted as, ‘‘the motel qualifies as homeless under comments received in response to the
individual or family does not have paragraph (1)(ii) of the ‘‘homeless’’ proposed rule concerning the definition
sufficient resources or support definition (section 103(a)(3) of the of ‘‘homeless’’ HUD has provided
networks, e.g., family, friends, faith- McKinney-Vento Act). specific citations to the other federal
based or other social networks, The fifth risk factor, ‘‘lives in severely statutes that are applicable to the first of
immediately available to prevent them overcrowded housing,’’ is interpreted as these two categories. As for the last
from moving to an emergency shelter or ‘‘lives in a single-room occupancy or category, the interim rule clarifies that
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another place described in paragraph (1) efficiency apartment unit in which more the parent(s) or guardian(s) of the
of the homeless definition [in § 576.2].’’ than two persons, on average, reside or children or youth defined as homeless
These clarifications are consistent with another type of housing in which there under subtitle B of title VII of the
HUD’s practice in administering its reside more than 1.5 persons per room, McKinney-Vento Act must be living
homeless assistance programs and will as defined by the U.S. Census Bureau.’’ with those children or youth to qualify
help ensure consistent application of The sixth risk factor, ‘‘is exiting an as ‘‘at risk of homelessness’’ under that
these criteria. institution,’’ is interpreted as ‘‘a category.
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75957
Emergency shelter. This interim rule program. Under the McKinney-Vento used for five program components
revises certain definitions currently Act, ‘‘recipient’’ means ‘‘any (street outreach, emergency shelter,
found in the existing part 576 governmental or private nonprofit entity homelessness prevention, rapid re-
regulations. The definition of approved by the Secretary [of HUD] as housing assistance, and HMIS) and
‘‘emergency shelter’’ has been revised to to financial responsibility’’ (Sec. 42 necessary administrative costs.
distinguish this type of shelter from U.S.C. 11371(6)). The interim rule However, in accordance with the
transitional housing. This distinction is clarifies that ‘‘recipient’’ means any McKinney-Vento Act, some restrictions
necessitated by the McKinney-Vento state, territory, metropolitan city, or apply to the amounts that can be spent
Act’s explicit distinction between what urban county, or in the case of on street outreach, emergency shelter,
activities can or cannot be funded under reallocation, any unit of general purpose and administrative costs. Funds used for
the Continuum of Care program and the local government, approved by HUD to street outreach and emergency shelter
Rural Housing Stability program (see assume financial responsibility and activities will be limited to the greater
section 423(a)(2) and section which enters into a grant agreement of 60 percent of the recipient’s total
491(b)(1)(E) of the McKinney-Vento with HUD to administer Emergency fiscal year grant for ESG or the hold-
Act). However, under the definition, any Solutions Grant (ESG). Private nonprofit harmless amount established by the
project that received funding in FY 2010 organizations are excluded from the section 415(b) of the McKinney-Vento
as an emergency shelter may continue to definition, because they are not direct Act (‘‘the amount expended by [the
be funded under the ESG program, recipients under the program. The recipient] for such activities during
regardless of whether the project meets interim rule defines ‘‘subrecipient’’ as fiscal year most recently completed
the revised definition. any unit of general purpose local before effective date under section 1503
Homeless. The interim rule includes government or private nonprofit of the [HEARTH Act]’’). To reasonably
the definition of ‘‘homeless’’ which is organization to which a recipient and practicably implement the statute’s
made final by the Defining Homeless awards ESG grant funds. hold-harmless language, the interim rule
rule, published elsewhere in today’s makes the hold-harmless amount the
Federal Register. No further public Allocation of Funding (Section 576.3)
amount of FY 2010 grant funds
comment is being solicited or taken on Under the interim rule, the existing committed for street outreach and
this definition. set-aside of funding for the territories emergency shelter activities in FY 2010.
Metropolitan city. This interim rule has been changed for the Emergency In accordance with the amendments
revises the definition of ‘‘metropolitan Solutions Grant program to ‘‘up to 0.2 to the McKinney-Vento Act, the interim
city’’ to clarify that the definition percent, but not less than 0.1 percent’’ rule provides that the total funds that
includes the District of Columbia, since of the total fiscal year appropriation for can be spent on administrative activities
the McKinney-Vento Act includes the Emergency Solutions Grant (ESG). This are 7.5 percent of the recipient’s ESG
District of Columbia in both its change provides HUD with greater grant. In addition, the interim rule
definitions of ‘‘state’’ and ‘‘metropolitan administrative discretion if there are clarifies that, subject to the cost
city’’. HUD has decided to resolve this significant increases in the annual principles in Office of Management and
conflict in favor of treating the District appropriations for ESG. In addition, the Budget (OMB) Circulars A–87 (2 CFR
of Columbia under the ESG program as formula for distributing the set-aside part 225) and A–122 (2 CFR part 230),1
a metropolitan city. This interpretation among the territories has been modified employee compensation and other
will provide the District of Columbia for this program to incorporate the rate overhead costs directly related to
with the flexibility afforded to at which each territory has completed carrying out street outreach, emergency
metropolitan cities and urban counties its expenditures by the previous shelter, homelessness prevention, rapid
for carrying out activities directly, rather expenditure deadline. In all other re-housing, and HMIS activities are
than being compelled to subgrant all respects, the allocation of funding will eligible costs of those activities and not
ESG funds. In addition, the definition of remain the same as the current practice. subject to the spending limit for
‘‘territory’’ in 24 CFR 576.3 has been administrative costs. This clarification
Eligible Activities (Subpart B)
updated to exclude the Trust Territory is in response to questions and concerns
of the Pacific Islands, which is no longer The major changes to this subpart of raised by HPRP grantees and
a U.S. territory. part 576 include the addition of an subgrantees and the recent U.S.
Private nonprofit organization; unit of annual funding cap on street outreach Government Accountability Office
general purpose local government. The and emergency shelter activities; (GAO) study, Homelessness:
changes to the definitions of ‘‘private clarification of the eligible costs for Information on Administrative Costs for
nonprofit organization’’ and ‘‘unit of street outreach and emergency shelter HUD’s Emergency Shelter Grants
general local government’’ are intended activities; the expansion of the Program (GAO–10–491).2
to make clear that governmental homelessness prevention component of Street outreach and emergency shelter
organizations, such as public housing the program and addition of a new rapid components. Consistent with section
agencies or state or local housing re-housing assistance component, which 415(a)(2) of the McKinney-Vento Act,
finance agencies, are not eligible both include rental assistance and the interim rule clarifies that the costs
subrecipients under the ESG program. housing relocation and stabilization of essential services related to street
To recognize these entities under either services; expansion of the range of outreach are eligible costs under the
definition would be inconsistent with eligible administrative costs; and the ESG program. The eligible costs for
section 411 of the McKinney-Vento Act, addition of a new category of eligible street outreach activities differ from the
which refers specifically to ‘‘private activities for Homeless Management
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eligible costs for essential services
nonprofit organizations’’ and ‘‘unit of Information Systems (HMIS), to the
general purpose local government.’’ extent that costs are necessary to meet 1 OMB Circular A–87 and the regulations at 2 CFR
Recipient and subrecipient. In the the new HMIS participation part 225 pertain to ‘‘Cost Principles for State, Local,
interim rule, the terms ‘‘recipient’’ and and Indian Tribal Governments.’’ OMB Circular A–
requirement under the McKinney-Vento 122 and the regulations codified at 24 CFR part 230
‘‘subrecipient’’ replace the existing Act. pertain to ‘‘Cost Principles for Non-Profit
terminology for entities that received General Provisions. In general, the Organizations.’’
grants and subgrants under the ESG interim rule allows ESG funds to be 2 See http://www.gao.gov/new.items/d10491.pdf.
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75958 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
related to emergency shelter, as they are Housing Relocation and Stabilization re-enter permanent housing and achieve
limited to those necessary to provide Services. The eligible costs and long-term stability in that housing. For
emergency care on the street. To the requirements for providing housing example, instead of requiring an
extent possible, essential services relocation and stabilization services are individual or family to move from an
related to emergency shelter and street based on HUD’s experience in assisted unit when the individual or
outreach are the same as the eligible developing and administering HPRP. family’s assistance ends, the interim
costs for supportive services under the For the purpose of determining rule provides for the assistance to be
Continuum of Care program. This compliance with the statutory limit on suspended, terminated, or transferred to
consistency across these three sets of street outreach and emergency shelter another unit.
services is intended to improve activities, housing stability case HUD specifically requests comments
understanding of the programs’ management and legal services are on how short- to medium-term project-
requirements, facilitate coordination, distinguished from the case based rental assistance can best be
and maximize efficiency. management and legal services in the fashioned to avoid forcing each program
The interim rule revises the eligible essential services sections of street participant to move at the end of the
costs for operating emergency shelters outreach and emergency shelter by program participant’s term of assistance
by removing the limit on staff costs, when and for what purpose the case and to make project-based rental
adding the cost of supplies, and management and legal services are assistance a feasible and useful
allowing the cost of a hotel or motel stay provided. Note that ‘‘housing relocation alternative to tenant-based rental
under certain conditions. and stabilization services,’’ the name of assistance.
The interim rule clarifies the which comes from section 415(a)(5) of Similar to the rules of other HUD
‘‘maintenance of effort’’ requirement in the McKinney-Vento Act, are not to be housing programs, the interim rule
two respects. First, the references to confused with the relocation assistance prohibits rental assistance from being
new service and quantifiable increase in and payments required under the provided for a housing unit, unless the
services are eliminated in favor of Uniform Relocation Assistance and Real total rent for the unit does not exceed
simply prohibiting a unit of general Property Acquisition Policies Act of the fair market rent established by HUD,
purpose local government from using 1970 (URA) (42 U.S.C. 4601–4655). as provided under 24 CFR 982.503, and
ESG funds to replace funds the local Costs arising under the URA are eligible complies with HUD’s standard of rent
government provided for street outreach for federal financial assistance in the reasonableness, as established under 24
or emergency shelter services during the same manner and to the same extent as CFR 982.507. These rent restrictions are
immediately preceding 12-month other program or project costs (see 42 intended to make sure that program
period, unless HUD determines that the U.S.C. 4631(a)), and are separately listed participants can remain in their housing
unit of general purpose local at § 576.102 of this interim rule. after their ESG assistance ends.
government is in a severe financial Short-term and Medium-term Rental HMIS Component. Section 416(f) of
deficit. Second, the interim rule Assistance. Consistent with HPRP, HUD the McKinney-Vento Act requires for
specifies how this determination would has interpreted short-term rental the first time that projects receiving
be made. assistance to be up to 3 months of funding under Emergency Solutions
Homelessness Prevention and Rapid assistance. Unlike HPRP, HUD has Grant (ESG) program participate in an
Re-Housing Components. HUD has interpreted medium-term rental HMIS. The interim rule makes certain
interpreted sections 415(a)(4) and (5) of assistance to be up to 24 months. This HMIS costs eligible to the extent
the McKinney-Vento Act to authorize change is intended for consistency with necessary to enable this participation.
ESG funds to be used for short- and the period for transitional housing in HUD will soon be publishing a
medium-term rental assistance and the Continuum of Care (CoC) program. proposed rule on HMIS to establish in
housing relocation and stabilization The requirements for short- and 24 CFR part 580, the regulations that
services for homelessness prevention medium-term rental assistance require will govern HMIS. In addition to
and rapid re-housing of homeless that a program participant and a establishing HMIS regulations in a new
individuals and families into permanent housing owner have a written lease for part 580 provisions, the HMIS rule will
housing. Consistent with this the provision of rental assistance. In propose corresponding amendments to
interpretation and to serve HUD’s addition, the interim rule also requires this interim rule regarding the use of
programmatic goals, the interim rule a rental assistance agreement between Emergency Solutions Grant (ESG) funds
categorizes the eligible activities under the recipient or subrecipient and the for HMIS and the incorporation of the
sections 415(a)(4) and (5) of the housing owner. Similar to HPRP, the requirements under part 580 that will
McKinney-Vento Act under two interim rule gives Emergency Solutions apply to ESG recipients.
program components—one for Grant (ESG) recipients broad discretion Administrative Activities. Under this
homelessness prevention and one for in determining the type, amount, and interim rule, the eligible costs for
rapid re-housing assistance. This duration of rental assistance a program administrative activities have been
organization is intended to be function/ participant can receive for homelessness expanded to reflect most of the eligible
outcome-focused and helps emphasize prevention or rapid re-housing administrative costs under the CDBG
the integral relationship between rental assistance. But where HPRP allows only program. The revisions to the sharing
assistance and housing relocation and tenant-based rental assistance, the requirement also clarify that, although
stabilization services in both interim rule allows rental assistance to not required, funds for administrative
homelessness prevention and rapid re- be tenant-based or project-based, as costs may be shared with private
housing assistance. This organization provided under section 415(a)(4) of the nonprofit organizations, and a
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also provides for differentiation between McKinney-Vento Act. However, the reasonable amount must be shared with
the conditions for providing requirements for project-based rental units of general purpose local
homelessness prevention and the assistance under this interim rule have government. This clarification is made
conditions for providing rapid re- been specially designed to in response to grantee and subgrantee
housing assistance. These conditions are accommodate both the impermanent concerns and questions raised through
intended to facilitate the strategic and nature of the rental assistance and the the recent GAO report, Homelessness:
efficient targeting of resources. program goal of helping people quickly Information on Administrative Costs for
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75959
HUD’s Emergency Shelter Grants addition to the (ESG) grant, because of Systems coordination. Consistent
Program (GAO–10–491). the sizable matching requirement in with sections 402(f) and 413(b) of the
Indirect Costs. This interim rule Emergency Solutions Grant (ESG). McKinney-Vento Act, the interim rule
reflects HUD’s decision to adopt a Obligation, expenditure, and payment contains a new requirement for
consistent policy for indirect costs for requirements. The interim rule clarifies Emergency Solutions Grant (ESG)
the Emergency Solutions Grant (ESG), the obligation of funds requirements recipients to consult with Continuums
Continuum of Care and Rural Housing and imposes new expenditure-of-funds of Care in allocating funds for eligible
Stability Programs, in response to requirements. The interim rule requires activities; developing performance
further grantee and subgrantee questions the recipient to draw down its funds standards, evaluating outcomes of
and concerns. The interim rule provides from each year’s allocation not less than (ESG)-assisted projects and developing
that Emergency Solutions Grant (ESG) once during each quarter of the funding, policies, and procedures for
funds may be used to pay indirect costs recipient’s program year. This the administration and operation of the
in accordance with OMB Circulars A–87 requirement is based on HUD’s HMIS. This requirement will be
(2 CFR part 225) and A–122 (2 CFR part experience in administering homeless discussed in further detail in regard to
230), as applicable. Indirect costs may assistance grants, and is intended to the revisions of the consolidated
be allocated to each eligible activity, so ensure the timely reimbursements from planning requirements at 24 CFR part 91
long as the allocation is consistent with HUD to recipients. In addition, the (section II.B of this preamble).
an indirect cost rate proposal developed recipient (and its subrecipients that are The interim rule requires ESG
in accordance with OMB Circulars A–87 units of general purpose local recipients and subrecipients to
(2 CFR part 225) and A–122 (2 CFR part government) will be required to make coordinate and integrate, to the
230), as applicable. The indirect costs timely payments to each of its maximum extent practicable, ESG-
charged to an activity subject to an subrecipients within 30 days after the funded activities with other programs
expenditure limit must be added to the date of receiving the subrecipient’s targeted toward homeless people, as
direct costs charged for that activity complete payment request. This well as mainstream housing, health,
when determining the total costs subject requirement is also based on HUD’s social services, employment, education,
to the expenditure limit. experience in administering homeless and youth programs for which families
assistance grants and is intended to and individuals at risk of homelessness
Award and Use of Grant Amounts ensure timely payment of private and homeless individuals and families
(Subpart C) nonprofit organizations, which may not may be eligible. These requirements are
The major changes to this subpart be able to cover their expenses for as consistent with recurring HUD
include clarification of the submission long a period as state and local appropriations language for the
requirements for territories, elaboration governments. As in the Emergency homeless assistance grants and with the
of the matching requirements, Shelter Grants program, all of the Federal Strategic Plan to Prevent and
clarification of the obligation recipient’s grant must be expended for End Homelessness (FSP).4
requirements, and the addition of eligible activity costs within 24 months Centralized or coordinated
minimum requirements for making after the date HUD signs the grant assessment. This interim rule
timely drawdowns and payments to agreement with the recipient. introduces a proposed requirement for
subrecipients. ESG recipients and subrecipients to use
Reallocation (Subpart D)
Submission Requirements. The a centralized or coordinated system to
The interim rule makes substantial initially assess the eligibility and needs
application requirements generally
changes to the Emergency Solutions of each individual or family who seeks
remain the same as the current
Grant (ESG) reallocation provisions in homeless assistance or homelessness
application requirements, except that
order to improve administrative prevention assistance. This centralized
territories will be required to submit a
efficiency. For example, if the amount of or coordinated assessment system
consolidated plan in accordance with
unused or returned funds is not would be developed and implemented
the requirements that apply to local
sufficient to justify the administrative by the Continuum of Care in accordance
governments under HUD’s Consolidated
burden of reallocating those funds, with minimum requirements to be
Plan regulations codified in 24 CFR part
whether for HUD or ESG recipients, the established by HUD. HUD is currently
91. The interim rule also clarifies that
interim rule provides for those funds to developing its minimum requirements
certain changes in the recipients’
be added to the next fiscal year for these systems and will present these
Emergency Solutions Grant (ESG)
allocation. requirements for public review and
programs require an amendment to the
consolidated plan in accordance with 24 Program Requirements (Subpart E) comment in the upcoming proposed
CFR 91.505. rule for the Continuum of Care program.
The major changes to this subpart Please note that this interim rule does
Matching Requirements. The revisions include the addition of new
to the matching contribution not require any ESG recipient or
requirements that facilitate coordination subrecipient to use a centralized or
requirements (and recordkeeping at the state and local levels as a means
requirements related to the matching coordinated assessment system until the
to prevent and reduce homelessness; Continuum of Care program final rule
requirements) integrate the matching elaboration on the requirements
requirements in 24 CFR 85.24 3 and has been published and until the
concerning the integration and use of Continuum of Care for the area develops
provide further clarification on how appropriate assistance and services,
matching contributions must be and implements a system that meets the
termination of assistance, habitability
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counted. The interim rule also specifies minimum requirements in that final
standards, and conflicts of interest; rule.
that program income is to be used as a modification of the homeless Through the administration of the
match, rather than being treated as an participation requirement to reasonably Rapid Re-Housing for Families
3 HUD’s regulations in 24 CFR part 85 address
and practicably implement the statutory Demonstration program and the
administrative requirements for grants and
requirement; and clarification of the
cooperative agreements to state, local, and federally applicable requirements under other 4 See http://www.usich.gov/PDF/
recognized Indian tribal governments. federal laws and regulations. OpeningDoors_2010_FSPPreventEndHomeless.pdf.
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75960 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
Homelessness Prevention and Rapid Re- from ESG-funded victim service system, particularly from those in
Housing Program, as well as best providers on this question. HUD also communities that have already
practices identified in communities, plans to require each Continuum of Care implemented one of these systems who
HUD has learned that centralized or to develop a specific policy on how its can share both what has worked well
coordinated assessment systems are particular system will address the needs and how these systems could be
important in ensuring the success of of individuals and families who are improved. HUD specifically seeks
homeless assistance and homeless fleeing, or attempting to flee, domestic comment on any additional risks that a
prevention programs in communities. In violence, dating violence, sexual centralized or coordinated assessment
particular, such assessment systems assault, or stalking, but who are seeking system may create for victims of
help communities systematically assess shelter or services from non-victim domestic violence, dating violence,
the needs of program participants and service providers. These policies could sexual assault, or stalking who are
effectively match each individual or include reserving private areas at an seeking emergency shelter services due
family with the most appropriate assessment location for evaluations of to immediate danger, regardless of
resources available to address that individuals or families who are fleeing, whether they are seeking services
individual or family’s particular needs. or attempting to flee, domestic violence, through a victim service provider or
Therefore, HUD intends to require dating violence, sexual assault, or non-victim service provider.
each Continuum of Care to develop and stalking; a separate ‘‘track’’ within the Standards for administering
implement a centralized or coordinated assessment framework that is assistance and minimum assistance
assessment system in its geographic specifically designed for domestic requirements. As discussed later in this
area. Such a system must be designed violence victims; or the co-location of preamble with respect to the revisions
locally in response to local needs and victim service providers with to HUD’s Consolidated Plan regulations
conditions. For example, rural areas will centralized assessment teams. in 24 CFR part 91, this interim rule
have significantly different systems than HUD invites suggestions for ensuring requires a number of written standards
urban ones. While the common thread that the requirements it imposes to be established by recipients and
between typical models is the use of a regarding centralized or coordinated subrecipients for administering ESG
common assessment tool (such as a assessment systems will best help assistance, in order to balance the broad
vulnerability index), the form, detail, communities use their resources discretion given to recipients in
and use of that tool will vary from one effectively and best meet the needs of all developing street outreach, emergency
community to the next. Some examples families and individuals who need shelter, rapid re-housing, and
of centralized or coordinated assessment assistance. Some specific questions homelessness prevention programs to
systems include: A central location or HUD asks commenters to address are: accommodate the unique needs,
locations within a geographic area What barriers to accessing housing/ strengths, and other characteristics of
where individuals and families must services might a centralized or their communities.
present for homeless services; a 211 or coordinated intake system pose to The interim rule also specifies that all
other hotline system that screens and victims of domestic violence? How can program participants must be assisted as
directly connects callers to appropriate those barriers be eliminated? What needed in obtaining services and
homeless housing/service providers in specific measures should be financial assistance through other
the area; a ‘‘no wrong door’’ approach in implemented to ensure safety and homeless and public assistance
which a homeless family or individual confidentiality for individuals and programs. Furthermore, each program
can present at any homeless service families who are fleeing or attempting to participant receiving homelessness
provider in the geographic area but is flee domestic violence situations? How prevention or rapid re-housing
assessed using the same tool and should those additional standards be assistance must be required to meet
methodology so that referrals are implemented to ensure that victims of regularly with a case manager (except
consistently completed across the domestic violence have immediate where prohibited by Violence Against
Continuum of Care; a specialized team access to housing and services without Women Act (VAWA) and the Family
of case workers that provides increasing the burden on those victims? Violence Prevention and Services Act
assessment services to providers within For communities that already have (FVPSA)), and the assistance provider
the Continuum of Care; or in larger centralized or coordinated assessment must develop an individualized plan to
geographic areas, a regional approach in systems in place, are victims of help that program participant retain
which ‘‘hubs’’ are created within domestic violence and/or domestic permanent housing after the ESG
smaller geographic areas. violence service providers integrated assistance ends. These requirements are
HUD recognizes that imposing a into that system? In either scenario (they intended to help ensure that the ESG-
requirement for a centralized or are integrated into an assessment funded emergency, short-term or
coordinated assessment system may process or they are not integrated into medium-term assistance will be
have certain costs and risks. Among the it), how does your community ensure effective in helping program
risks that HUD wishes specifically to the safety and confidentiality of this participants regain long-term housing
address are the risks facing individuals population, as well as access to stability and avoid relapses into
and families fleeing domestic violence, homeless housing and services? What homelessness.
dating violence, sexual assault, and HUD-sponsored training would be Terminating Assistance. If a program
stalking. In developing the baseline helpful to assist communities in participant who receives ESG assistance
requirements for a centralized or completing the initial assessment of violates program requirements, the
coordinated intake system, HUD is victims of domestic violence in a safe recipient or subrecipient may terminate
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considering whether victim service and confidential manner? the assistance in accordance with a
providers should be exempt from In addition to comments addressing formal process established by the
participating in a local centralized or the needs of victims of domestic recipient or subrecipient that protects
coordinated assessment process, or violence, dating violence, sexual the rights of the individuals affected.
whether victim service providers should assault, and stalking, HUD invites This applies to all forms of ESG
have the option to participate or not. general comments on the use of a assistance. In this interim rule, HUD
HUD is seeking comment specifically centralized or coordinated assessment enhances the minimum process
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75961
requirements for the termination of a formal waiver request, so long as the with 24 CFR part 8. In certain instances,
homelessness prevention or rapid re- recipient develops a plan to consult recipients undertaking alterations may
housing assistance, in order to reflect with homeless or formerly homeless be required to ensure that 5 percent of
the process set forth in the Supportive individuals in considering and making the total sleeping areas, such as 5
Housing Program (SHP) regulations. policies and decisions regarding any percent (or at least one) of the sleeping
These enhanced process requirements facilities, services, or other assistance rooms where a number of sleeping
are prompted by the longer duration and that receive ESG funding; includes the rooms are provided, and 5 percent (or at
higher expectations involved in plan in its annual action plan to be least one) of the total number of
homelessness prevention and rapid re- submitted under 24 CFR part 91; and sleeping areas, such as beds, where a
housing assistance, as compared to the obtains HUD’s approval of its annual number of beds are provided in a room,
duration and expectations involved in action plan. This revision is intended to are accessible for persons with mobility
street outreach or emergency shelter reduce administrative burden to both impairments and that an additional 2
activities. recipients and to HUD. percent of the total individual sleeping
To terminate rental assistance or Other Federal Requirements. In areas are accessible for persons with
housing relocation and stabilization general, the revisions to the section on visual impairments. The Americans
services to a program participant, the ‘‘other Federal requirements’’ clarify the with Disabilities Act may also apply and
minimum required formal process must degree to which certain requirements require a greater level of accessibility in
consist of a written notice to the are applicable, remove certain certain shelters.
program participant containing a clear requirements that are redundant or Relocation and Acquisition. The
statement of the reasons for termination, moved elsewhere in the rule for interim rule updates the relocation and
a review of the decision, and a prompt improved organizational purposes, and acquisition requirements and makes
written notice of the final decision to change certain requirements to them more consistent with the
the program participant. The review of correspond with changes in the requirements in other HUD programs.
the decision must give the program McKinney-Vento Act or other changes Section 576.102 specifies that the cost of
participant the opportunity to present made by this interim rule. Chief among providing relocation assistance and
written or oral objections before a these changes is the change to the payments arising out of the Uniform Act
person other than the person (or a environmental review requirements in (URA) is an eligible activity, as per
subordinate of that person) who made or accordance with the HEARTH Act’s section 211 of the URA (42 U.S.C.
approved the termination decision. In repeal of section 443 of the McKinney- 4631(a)). Temporary relocation and
addition, the interim rule provides that Vento Act. Under this interim rule, other alternatives to minimize
the recipient or subrecipient may Emergency Solutions Grant (ESG) displacement in other HUD programs
resume assistance to a family or activities would be made subject to that provide permanent housing are
individual whose assistance has been environmental review by HUD under inapplicable due to the nature of the
terminated. HUD’s environmental regulations in 24 ESG program. Emergency shelters
Shelter and Housing Standards. The CFR part 50, and HUD’s environmental assisted under the ESG program provide
revised habitability standards regulations in 24 CFR part 58 will no temporary shelter for the homeless.
incorporate lead-based paint longer be applicable to such activities. Existing tenants would not fall within
remediation and disclosure The interim rule does not retain the the program definition of ‘‘homeless.’’
requirements. The revised standards for provision in the current Emergency Section 576.408(b) provides that
emergency shelters require all shelters Shelter Grants program regulation temporary relocation is not an available
to meet minimum habitability standards specifying that for purposes of this alternative to permanently displacing a
adopted from the SHP regulations and program, the term ‘‘dwelling units’’ tenant who moves as a direct result of
current Emergency Solutions Grant under 24 CFR part 8 includes ‘‘sleeping acquisition, demolition, or
guidance. Shelters renovated with ESG accommodations.’’ The language is rehabilitation for a project assisted with
funds are also required to meet state or being removed because it did not ESG funds. Additionally, § 576.408(b)
local government safety and sanitation provide grantees with direction on how provides that an agency cannot avoid
standards, as applicable, include to apply this provision. Nevertheless, treating such tenant as a displaced
energy-efficient appliances and Section 504 of the Rehabilitation Act of person by offering the tenant a unit in
materials. If ESG funds are used to help 1973 and HUD’s implementing the same building/complex upon project
a program participant remain in or move regulations at 24 CFR part 8 apply to the completion. Finally, § 576.408(d) of the
into permanent housing, that housing Emergency Solutions Grants program, interim rule clearly states that the URA
must meet habitability standards. including accessibility requirements applies to an acquisition undertaken in
Conflicts of Interest. This interim rule under Subpart C—Program connection with an ESG-assisted project
clarifies the existing personal conflicts- Accessibility. A recipient shall operate irrespective of the source of funding for
of-interest provision by incorporating each existing program or activity the acquisition.
language from the CDBG program receiving federal financial assistance so
regulation. In addition, the interim rule that the program or activity, when Grant Administration (Subpart F)
adds a new provision to reduce viewed in its entirety, is readily The changes to this subpart
organizational conflicts of interest, accessible to and usable by individuals substantially revise the Emergency
based on HUD’s experience in with disabilities. Grantees are also Solutions Grant (ESG) recordkeeping
administering HPRP. required to provide reasonable and reporting requirements and the
Homeless Participation. The interim accommodations for persons with enforcement provisions. The changes to
pmangrum on DSK3VPTVN1PROD with RULES2
rule revises the current homeless disabilities in order to enable program the recordkeeping requirements include
participation requirement so that if a participants with a disability to have an the addition of specific documentation
recipient is unable to meet the equal opportunity to participate in the requirements to demonstrate
participation of homeless individuals program or activity. compliance with ESG regulations, as
requirement in section 416(d) of the Grantees that undertake alterations to well as new requirements regarding
McKinney-Vento Act, the recipient need shelters may be subject to additional record retention periods,
not submit and obtain HUD approval of accessibility requirements in accordance confidentiality, and rights of access to
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75962 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
records. The reporting requirements and B. Consolidated Submissions for mental health agencies; hospitals;
the enforcement provisions are each Community Planning and Development universities; affordable housing
expanded and further clarified. Programs (24 CFR Part 91) developers; law enforcement;
Recordkeeping and reporting In addition to revising regulations for organizations that serve homeless and
requirements. Grant recipients under the Emergency Shelter Grants program formerly homeless veterans, and
the ESG program have always been at 24 CFR part 576 to establish the homeless and formerly homeless
required to show compliance with the regulations for Emergency Solutions persons that are organized to plan for
Grant (ESG), this interim rule revises and provide, as necessary, a system of
program’s regulations through
selected sections of the consolidated outreach, engagement, and assessment;
appropriate records. However, the
planning regulations at 24 CFR part 91, emergency shelter; rapid re-housing;
existing regulations for the Emergency
in order to reflect both the HEARTH Act transitional housing; permanent
Shelter Grants program are not specific
amendments to the McKinney-Vento housing; and prevention strategies to
about the records to be maintained. The
address the various needs of homeless
interim rule elaborates upon the Act and significant developments in
persons and persons at risk of
recordkeeping requirements to provide HUD’s homelessness policies and
homelessness for a specific geographic
sufficient notice and clarify the program administration over the last 15
area.
documentation that HUD requires for years. In developing and implementing The use of ‘‘Continuum of Care’’
assessing compliance with the new the Continuum of Care concept through instead of ‘‘collaborative applicant’’ is
requirements of the program. The the annual notices of funding intended to maintain consistency with
recordkeeping requirements for availability (NOFAs) for its competitive the terminology HUD has established
documenting homeless status were programs, HUD sought to establish and and grantees have become familiar with
published in the proposed rule for the standardize complementary planning in the Continuum of Care planning
homeless definition.5 Recordkeeping requirements between the homeless process for the Supportive Housing
requirements with similar levels of components of the Consolidated Plan program, the Shelter Plus Care program,
specificity will apply to documentation and the annual submission of the and the Moderate Rehabilitation/Single
of ‘‘at risk of homelessness’’ and Continuum of Care Plan. The structure Room Occupancy program. The term
‘‘annual income.’’ Further requirements of the annual Continuum of Care Plan ‘‘collaborative applicant,’’ as used in the
are modeled after the recordkeeping (CoC) plan and the plan’s sections on McKinney-Vento Act, covers two
requirements for the HOME Investment community participation, needs distinct entities under the existing
Partnerships program (24 CFR 92.508) assessment, inventory of housing and Continuum of Care planning process:
and other HUD regulations. services, strategies, annual application, One entity whose function is planning
and performance were developed to and facilitating collaboration and
Included along with these changes are harmonize with the Consolidated Plan’s
new or expanded requirements another entity whose function is
homelessness components. Many applying for and managing the homeless
regarding confidentiality, rights of communities closely aligned the
access to records, record retention assistance grant. Because HUD has
Consolidated Plan and the Continuum always called the planning entity the
periods, and reporting requirements. of Care Plan (CoC) Plan covering their
Most significantly, to protect the safety Continuum of Care, HUD is continuing
jurisdiction. that practice in this interim rule.
and privacy of all program participants, The HEARTH Act amendments to the The interim rule strengthens and
the interim rule broadens program’s McKinney-Vento Act contain provisions standardizes the homelessness elements
confidentiality requirements. The requiring coordination, collaboration, affecting all jurisdictions required to
McKinney-Vento Act only requires and consultation between Continuums submit a Consolidated Plan. The
procedures to ensure the confidentiality of Care and ESG state and local changes to the Consolidated Plan
of records pertaining to any individual government recipients. The McKinney- sections on homelessness have been
provided family violence prevention or Vento Act requires ‘‘collaborative guided by the larger purposes of the
treatment services under the ESG applicants’’ under the Continuum of HEARTH Act and the principles and
program. The interim rule requires Care program to participate in the priorities put forth in the Federal
written procedures to ensure the Consolidated Plan for the geographic Strategic Plan to Prevent and End
security and confidentiality of all areas they serve and analyze patterns of Homelessness (FSP). The changes to the
records containing personally use and evaluate outcomes for ESG Consolidated Plan will foster closer
identifying information of any projects in those areas. ESG recipients coordination between not only
individual or family who applies for in turn must consult with these Emergency Solutions Grant (ESG) and
and/or receives Emergency Solutions collaborative applicants on the Continuum of Care (CoC) programs, but
Grant (ESG) assistance. allocation of ESG funds and participate other mainstream housing and services
Enforcement. The interim rule revises in HMIS, which the collaborative programs that can provide greater
the sanctions section under the existing applicants are required to establish. resources to homeless persons and
regulations for the Emergency Shelter In describing these and related people at imminent risk of
Grants program, including the heading requirements for cross-program homelessness.
of the section on sanctions, to coordination, this interim rule uses the Definitions. The Consolidated Plan
strengthen the enforcement procedures term ‘‘Continuum of Care’’ instead of regulations are modified to add and
and the array of remedial actions and ‘‘collaborative applicant.’’ The interim revise this section to conform to
sanctions for recipients and rule defines ‘‘Continuum of Care’’ as the definitions used in this interim rule for
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subrecipients of Emergency Solutions group composed of representatives of 24 CFR part 576 and the proposed rule
Grant (ESG) funds. These revisions draw relevant organizations, which generally that will soon be published for the
from the requirements at 24 CFR 85.43 includes nonprofit homeless providers; Continuum of Care program. A
and other HUD program regulations. victim service providers; faith-based definition of rapid re-housing assistance
organizations; governments; businesses; is added to bring coverage of general
5 See the April 20, 2010, edition of the Federal advocates; public housing agencies; homeless assistance models in 24 CFR
Register at 75 FR 20544. school districts; social service providers; part 91 up-to-date. Other definitions are
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75963
eliminated because they will no longer during the course of the head of standards for collecting data on
be used in part 91 after the changes in household’s homeless experience. homeless populations and
the regulations to the McKinney-Vento Consultation: Local Governments/ subpopulations and performance
Act programs. States. The interim rule revises the measures. The changes also provide
HUD specifically invites comments consultation requirements in 24 CFR additional definition to the description
regarding the definition of chronically part 91 to implement the McKinney- of the characteristics and needs of
homeless. The McKinney-Vento Act Vento Act’s new requirement that ESG persons who are currently housed but
defines ‘‘chronically homeless’’ as an recipients consult with Continuums of threatened with homelessness. These
individual or family who: (i) Is Care when allocating their ESG funds to changes permit HUD to more closely
homeless and lives or resides in a place carry out eligible activities. In response harmonize data included in each
not meant for human habitation, a safe to the concerns of prospective grantees jurisdiction’s Consolidated Plan with
haven, or in an emergency shelter; (ii) under the Continuum of Care program, data that the Continuum(s) of Care for
has been homeless and living or the interim rule includes several that jurisdiction will be required to
residing in a place not meant for human requirements to make it easier for collect and submit under the
habitation, a safe haven, or in an Continuums of Care to meet their Continuum of Care program. The
emergency shelter continuously for at requirements under the McKinney- collection of consistent homeless needs
least 1 year or on at least 4 separate Vento Act, including participating in data in these two planning processes
occasions in the last 3 years; and (iii) the Consolidated Plan for their will permit local and national
has an adult head of household (or a jurisdiction and designing a assessment of progress in meeting the
minor head of household if no adult is collaborative process for evaluating the goals set forth in the FSP.
present in the household) with a outcomes of ESG projects. Similar Housing Market Analysis; Facilities,
diagnosable substance use disorder, changes to facilitate the participation of Housing, and Services for Homeless
serious mental illness, developmental Continuums of Care (CoCs) in the Persons; Local Governments/States. The
disability (as defined in section 102 of Consolidated Planning process are also interim rule allows HUD to establish
the Developmental Disabilities made to the sections on citizen and modify descriptions of the facilities,
Assistance and Bill of Rights Act of participation at 24 CFR 91.105 and housing, and services for homeless
2000 (42 U.S.C. 15002)), post traumatic 91.115. persons to increase consistency between
The consultation sections were also the Consolidated Plan and the
stress disorder, cognitive impairments
revised to conform to the FSP’s Continuum of Care Plan. The interim
resulting from a brain injury, or chronic
emphasis not only on chronically rule adds mainstream services to the
physical illness or disability, including
homeless people, but on families with inventory of services meeting the needs
the co-occurrence of 2 or more of those
children, veterans and their families, of homeless persons, consistent with the
conditions. Additionally, the statutory
and unaccompanied youth, and the overall emphasis on using and
definition includes as chronically
FSP’s emphasis on strengthening collaborating with mainstream
homeless a person who currently lives collaboration with programs and entities assistance programs to prevent and end
or resides in an institutional care beyond the programs targeted to homelessness. Similar to changes made
facility, including a jail, substance abuse homeless people. The consultation to other sections, the special focus
or mental health treatment facility, sections refer specifically to ‘‘publicly accorded to chronically homeless
hospital or other similar facility, and funded institutions and systems of care people is broadened to include families
has resided there for fewer than 90 days that may discharge people into with children, veterans and their
if such person met the other criteria for homelessness (such as health-care families, and unaccompanied youth, in
homeless prior to entering that facility. facilities, mental health facilities, foster order to reflect the priorities in the FSP.
(See 42 U.S.C. 11360(2)) care and other youth facilities, and Strategic Plan; Homelessness
The regulatory definition of corrections programs and institutions).’’ Strategies; Local Government/States.
‘‘chronically homeless’’ does not This is done to be consistent with the The interim rule refocuses the general
elaborate significantly on the statutory emphasis on discharge planning in homelessness-related strategies on the
definition. However, HUD has section 406 of the McKinney-Vento Act. ultimate goals of reducing and ending
determined that when an individual or For this same reason, HUD also refers to homelessness and aligns them with
family has not been continuously these publicly funded institutions and Continuum of Care planning strategies
homeless for at least one year but has systems of care in each section of the and performance measures, such as
been homeless on at least four separate interim rule that specifically addresses shortening the period of time that
occasions in the last 3 years, each the prevention of homelessness. persons experience homelessness and
separate occasion must be at least 15 Housing Needs Assessment; Local helping persons who were recently
days in duration to ensure consistency Governments/States. The interim rule homeless avoid becoming homeless
for counting and eligibility purposes. adds a new category of persons for again. The changes under the interim
HUD has determined that the 15-day whom states and local jurisdictions are rule also emphasize the priorities of the
minimum is an appropriate measure to required to assess housing assistance FSP. The strategic framework set out in
distinguish the chronically homeless needs: Formerly homeless families and this section is carried through in
from the homeless population in individuals who are receiving rapid re- conforming changes to the Action Plan
general, so as to recognize chronically housing assistance and are nearing the and performance reporting sections of
homeless people who have spent a termination of that assistance. The the Consolidated Plan.
significant amount of time as homeless. addition of this category is intended to Action Plan; Local Government/
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The regulatory definition also clarifies help focus communities on helping States. The changes to the Action Plan
that a family will qualify as chronically these families stay housed after their sections for local governments and
homeless if the head of household has rapid re-housing assistance ends. States require the ESG recipient to
met all of the requirements in Homeless Needs Assessment; Local consult with applicable Continuums of
paragraphs (i) through (iii) of the Government/States. The changes under Care when allocating funds in the
statutory definition, given that a the interim rule increase HUD’s area(s) served by the Continuum(s) of
family’s composition may fluctuate flexibility in establishing and modifying Care and the ESG recipient and when
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75964 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
developing the performance standards regulations for the Emergency Solutions IV. Findings and Certifications
for the assisted activities. These changes Grants program because Congress has Regulatory Planning and Review
reflect the McKinney-Vento Act provided funding for this new program
requirements that ESG recipients in the Department of Defense and Full- OMB reviewed this rule under
consult with Continuums of Care on Year Continuing Appropriations Act, Executive Order 12866, Regulatory
their allocation of ESG funds and that 2011 (Pub. L. 112–10, approved April Planning and Review. This rule was
Continuums of Care in turn analyze 15, 2011) (FY 2011 Appropriations Act). determined to be a ‘‘significant
patterns of use of ESG funds and help regulatory action,’’ as defined in section
The FY 2011 Appropriations Act
evaluate outcomes for ESG-funded 3(f) of the order (although not an
appropriates, in section 2241 of the
projects. These changes are also economically significant regulatory
statute, $1,905,000,000 for homeless action under the order). As discussed
consistent with the statutory scheme of assistance grants, of which at least
the HEARTH Act, which generally earlier in this preamble, this interim
$225,000,000 shall be for the Emergency rule establishes the regulations for the
requires increased collaboration
Solutions Grant program. While many Emergency Solutions Grants program,
between Continuums of Care and ESG
federal programs, including HUD which is the successor program to the
recipients.
The changes under the interim rule programs, received a reduction in Emergency Shelter Grants program. In
for the ESG portion of the action plan funding in the FY 2011 Appropriations establishing the regulations for the
require each local government seeking Act, Congress increased funding for Emergency Solutions Grants program,
an ESG grant to specify the standards HUD’s homeless assistance grants, and the interim rule uses as its base the
under which homelessness prevention for the first time, authorized funding for regulations for the Emergency Shelter
and rapid re-housing assistance will be a program, (the Emergency Solutions Grants program and makes such changes
administered and describe the Grants program). HUD interprets this as necessary to reflect the changes and
centralized or coordinated assessments increase in funding as recognition by focus of the Emergency Solutions Grants
system(s) that will be used. By helping Congress of the significant needs that program. While emergency shelter
to ensure that the program is remain to help America’s homeless remains an important component of the
administered fairly and methodically, population and the expectation of Emergency Solutions Grants program,
these requirements provide balance to Congress that HUD will move the new Emergency Solutions Grants
the broad discretion that ESG recipients expediently to expend this funding to program places a greater focus on
are given in the design of their ESG assist and serve the homeless through homelessness prevention for persons at
programs. Including these standards in its programs. HUD interprets the risk of homelessness and rapid re-
the action plan allows the program substantial funding, a minimum of housing assistance for homeless
design to be strengthened as the plan is $225,000,000, for the Emergency persons. Accordingly, the rule does not
developed and refined through the Solutions Grant program, as recognition alter the fundamental goal of the
consultation and citizen participation by Congress that this program, which is program, which is to assist those who
stages in the planning process. The are homeless and in danger of becoming
an expansion of the predecessor
requirements for states differ slightly homeless. Therefore, the administrative
Emergency Shelter Grants program, and
from those that apply to local changes made by this rule do not result
includes features that were part of the
governments, in order to accommodate in an economic effect equal to $100
Recovery Act’s HPRP, is one that can million, which would be approximately
for the restrictions on states’ use of ESG
have an immediate impact in helping half of the program’s funding ($225
funds and the variety of areas and
the homeless. million). HUD believes that the
Continuums of Care their programs
encompass. Under the state programs, Given what HUD sees as a administrative changes made by the
the written standards for providing ESG congressional charge to move interim rule would also have no
assistance may vary by subrecipient, expediently, HUD is issuing this rule discernible impact upon the economy.
Continuum of Care, or the geographic providing for regulations for the The slight shift in emphasis from
area over which services are Emergency Solutions Grants program as emergency shelter in the Emergency
coordinated. an interim rule. Interim regulations in Shelter Grants program to homelessness
Certifications. The changes to the ESG place will allow HUD to move forward prevention and rapid rehousing
certifications clarify the certifications in making FY 2011 funds available to assistance in the Emergency Solutions
and bring them into closer conformance grantees. As has been discussed in this Grants program does not represent a
with the corresponding requirements preamble, the foundation for the significant regulatory change. Rapid
under part 576 and the McKinney-Vento regulations for the Emergency Solutions rehousing is already familiar to HUD’s
Act. Grants program are those of its homeless grantee providers from
predecessor program, the Emergency funding received under the HPRP, a
III. Justification for Interim temporary program funded through the
Rulemaking Shelters Grant program, regulations
with which HUD grantees are well American Recovery and Reinvestment
In accordance with its regulations on familiar. HUD grantees are also familiar Act of 2009, and their experience with
rulemaking at 24 CFR part 10, HUD with the requirements of the HPRP and, this program which continues to today.
generally publishes its rules for advance as the preamble has highlighted, this Because HPRP activities will continue
public comment. Notice and public through September 30, 2012, the interim
interim rule adopts many of the features
procedures may be omitted, however, if rule is directed to ensuring continuity
and requirements of HPRP.
HUD determines that, in a particular between HPRP and Emergency
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case or class of cases, notice and public Although for the reasons stated above, Solutions Grant (ESG) program.
procedure are ‘‘impracticable, HUD is issuing this rule to take The docket file is available for public
unnecessary, or contrary to the public immediate effect, HUD welcomes all inspection in the Regulations Division,
interest.’’ (See 24 CFR 10.1.) comments on this interim rule and all Office of the General Counsel, 451 7th
In this case, HUD has determined that comments will be taken into Street SW., Room 10276, Washington,
it would be contrary to the public consideration in the development of the DC 20410–0500. Due to security
interest to delay promulgation of the final rule. measures at the HUD Headquarters
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75965
building, please schedule an sector. This interim rule does not economic impact on a substantial
appointment to review the docket file by impose a federal mandate on any state, number of small entities.
calling the Regulations Division at (202) local, or tribal government, or on the Notwithstanding that determination,
708–3055 (this is not a toll-free private sector, within the meaning of HUD specifically invites comments
number). Individuals with speech or UMRA. regarding any less burdensome
hearing impairments may access this alternatives to this rule that will meet
number via TTY by calling the Federal Regulatory Flexibility Act HUD’s objectives as described in this
Relay Service at (800) 877–8339. The Regulatory Flexibility Act (5 preamble.
Environmental Impact U.S.C. 601 et seq.) generally requires an Executive Order 13132, Federalism
agency to conduct a regulatory
A Finding of No Significant Impact Executive Order 13132 (entitled
flexibility analysis of any rule subject to
(FONSI) with respect to the ‘‘Federalism’’) prohibits an agency from
environment has been made in notice and comment rulemaking publishing any rule that has federalism
accordance with HUD regulations at 24 requirements, unless the agency certifies implications if the rule either: (1)
CFR part 50, which implement section that the rule will not have a significant Imposes substantial direct compliance
102(2)(C) of the National Environmental economic impact on a substantial costs on state and local governments
Policy Act of 1969 (42 U.S.C. number of small entities. This rule and is not required by statute, or (2)
4332(2)(C)). The Finding of No solely addresses the allocation and use preempts state law, unless the agency
Significant Impact is available for public of grant funds under the new meets the consultation and funding
inspection between the hours of 8 a.m. McKinney-Vento Act homeless requirements of section 6 of the
and 5 p.m. weekdays in the Regulations assistance programs as consolidated and Executive Order. This final rule does
Division, Office of General Counsel, amended by the HEARTH Act. As not have federalism implications and
Department of Housing and Urban discussed in the preamble, the majority does not impose substantial direct
Development, 451 7th Street SW., Room of the regulatory provisions in this rule compliance costs on state and local
10276, Washington, DC 20410–0500. track the regulatory provisions of the governments nor preempt state law
Due to security measures at the HUD existing Emergency Shelter Grants within the meaning of the executive
Headquarters building, please schedule program, with which prospective order.
an appointment to review the FONSI by recipients of Emergency Solutions Grant
(ESG) are familiar. Accordingly, the Paperwork Reduction Act
calling the Regulations Division at (202)
708–3055 (this is not a toll-free transition from the Emergency Shelter The information collection
number). Individuals with speech or Grants program to the Emergency requirements contained in this interim
hearing impairments may access this Solutions Grant program, in regard to rule have been submitted to OMB under
number via TTY by calling the Federal funding and program requirements, the Paperwork Reduction Act of 1995
Information Relay Service at (800) 877– should raise minimal issues because (44 U.S.C. 3501–3520). In accordance
8339. applicants and grantees are well- with the Paperwork Reduction Act, an
familiar with these requirements and, agency may not conduct or sponsor, and
Unfunded Mandates Reform Act through the years, in soliciting a person is not required to respond to,
The Unfunded Mandates Reform Act information on the burden of the a collection of information, unless the
of 1995 (2 U.S.C. 1531–1538) (UMRA) Emergency Solutions Grant collection displays a currently valid
establishes requirements for federal requirements, grantees have not advised OMB control number.
agencies to assess the effects of their that such requirements are burdensome. The burden of the information
regulatory actions on state, local, and Therefore, HUD has determined that collections in this interim rule is
tribal governments and on the private this rule would not have a significant estimated as follows:
REPORTING AND RECORDKEEPING BURDEN
Response
Number of Total annual Burden hours Total annual
Information collection frequency
respondents responses per response hours
(average)
576.400(a) Consultation With Continuums of Care ........ 360 1 360 6.00 2,160
576.400(b) Coordination With Other Targeted Homeless
Services .......................................................................... 2,360 1 2,360 8.00 18,880
576.400(c) System and Program Coordination With
Mainstream Resources .................................................. 2,360 1 2,360 16.00 37,760
576.400(d) Centralized or Coordinated Assessment ...... 2,000 1 2,000 3.00 6,000
576.400(e) Written Standards for Determining the
Amount of Assistance .................................................... 808 1 808 5.00 4,040
576.400(f) Participation in HMIS ..................................... 78,000 1 78,000 0.50 39,000
576.401(a) Initial Evaluation ............................................ 50,000 1 30,000 1.00 30,000
576.401(b) Recertification ............................................... 20,000 2 40,000 0.50 20,000
576.401(d) Connection to Mainstream Resources ......... 78,000 3 234,000 0.25 58,500
576.401(e) Housing Retention Plan ................................ 50,000 1 50,000 0.75 37,500
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576.402 Terminating Assistance ..................................... 808 1 808 4.00 3,232
576.403 Habitability Review ............................................ 52,000 1 52,000 0.6 31,200
576.405 Homeless Participation ...................................... 2,360 12 28,320 1.00 28,320
576.500 Recordkeeping Requirements ........................... 2,360 1 2,360 12.75 30,009
576.501(b) Remedial Actions .......................................... 20 1 20 8.00 160
576.501(c) Recipient Sanctions ...................................... 360 1 360 12.00 4,320
576.501(c) Subrecipient Response ................................. 2,000 1 2,000 8.00 16,000
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75966 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
REPORTING AND RECORDKEEPING BURDEN—Continued
Response
Number of Total annual Burden hours Total annual
Information collection frequency
respondents responses per response hours
(average)
Total ............................................................................ ........................ ........................ ........................ .......................... 367,081
Total estimated burden hours: instructions provided on that site to (i) Has an annual income below 30
367,081. submit comments electronically. percent of median family income for the
In accordance with 5 CFR area, as determined by HUD;
1320.8(d)(1), HUD is soliciting List of Subjects
(ii) Does not have sufficient resources
comments from members of the public 24 CFR Part 91 or support networks, e.g., family,
and affected agencies concerning this friends, faith-based or other social
collection of information to: Aged, Grant programs—housing and networks, immediately available to
(1) Evaluate whether the proposed community development, Homeless, prevent them from moving to an
collection of information is necessary Individuals with disabilities, Low- and emergency shelter or another place
for the proper performance of the moderate-income housing, Reporting described in paragraph (1) of the
functions of the affected agency, and recordkeeping requirements. ‘‘Homeless’’ definition in this section;
including whether the information will 24 CFR Part 576 and
have practical utility; (iii) Meets one of the following
(2) Evaluate the accuracy of the Community facilities, Emergency conditions:
agency’s estimate of the burden of the solutions grants, Grant programs— (A) Has moved because of economic
proposed collection of information; housing and community development, reasons two or more times during the 60
(3) Enhance the quality, utility, and Grant program—social programs, days immediately preceding the
clarity of the information to be Homeless, Reporting and recordkeeping application for homelessness prevention
collected; and requirements. assistance;
(4) Minimize the burden of the Accordingly, for the reasons described (B) Is living in the home of another
collection of information on those who in the preamble, parts 91 and 576 of title because of economic hardship;
are to respond, including through the 24 of the Code of Federal Regulations (C) Has been notified in writing that
use of appropriate automated collection are amended as follows: their right to occupy their current
techniques or other forms of information housing or living situation will be
technology, e.g., permitting electronic PART 91—CONSOLIDATED terminated within 21 days after the date
submission of responses. SUBMISSIONS FOR COMMUNITY of application for assistance;
Interested persons are invited to PLANNING AND DEVELOPMENT (D) Lives in a hotel or motel and the
submit comments regarding the PROGRAMS cost of the hotel or motel stay is not paid
information collection requirements in by charitable organizations or by
this rule. Comments must refer to the ■ 1. The authority citation for 24 CFR federal, State, or local government
proposal by name and docket number part 91 continues to read as follows: programs for low-income individuals;
(FR–5474–I–01) and be sent to: HUD Authority: 42 U.S.C. 3535(d), 3601–3619, (E) Lives in a single-room occupancy
Desk Officer, Office of Management and 5301–5315, 11331–11388, 12701–12711, or efficiency apartment unit in which
Budget, New Executive Office Building, 12741–12756, and 12901–12912. there reside more than two persons or
Washington, DC 20503, Fax: (202) 395– lives in a larger housing unit in which
6947, and Reports Liaison Officer, ■ 2. In § 91.2, paragraph (a)(2) is revised there reside more than 1.5 people per
Office of the Assistant Secretary for to read as follows: room, as defined by the U.S. Census
Community Planning and Development, § 91.2 Applicability. Bureau;
Department of Housing and Urban (F) Is exiting a publicly funded
Development, Room 7233, 451 Seventh (a) * * *
institution, or system of care (such as a
Street SW., Washington, DC 20410– (2) The Emergency Solutions Grants health-care facility, a mental health
7000. (ESG) program (see 24 CFR part 576); facility, foster care or other youth
Interested persons may submit ■ 3. In § 91.5, the definitions of facility, or correction program or
comments regarding the information ‘‘Chronically homeless person,’’ institution); or
collection requirements electronically ‘‘Disabling condition,’’ ‘‘Homeless (G) Otherwise lives in housing that
through the Federal eRulemaking Portal family with children,’’ and ‘‘Homeless has characteristics associated with
at http://www.regulations.gov. HUD subpopulations’’ are removed; the instability and an increased risk of
strongly encourages commenters to definition of ‘‘Emergency shelter’’ is homelessness, as identified in the
submit comments electronically. revised; and the definitions of ‘‘At risk recipient’s approved consolidated plan;
Electronic submission of comments of homelessness,’’ ‘‘Chronically (2) A child or youth who does not
allows the commenter maximum time to homeless,’’ ‘‘Continuum of Care,’’ qualify as ‘‘homeless’’ under this
prepare and submit a comment, ensures ‘‘Homeless Management Information section, but qualifies as ‘‘homeless’’
timely receipt by HUD, and enables System (HMIS),’’ ‘‘Rapid re-housing under section 387(3) of the Runaway
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HUD to make them immediately assistance,’’ and ‘‘Victim service and Homeless Youth Act (42 U.S.C.
available to the public. Comments provider’’ are added to read as follows: 5732a(3)), section 637(11) of the Head
submitted electronically through the Start Act (42 U.S.C. 9832(11)), section
http://www.regulations.gov Web site can § 91.5 Definitions. 41403(6) of the Violence Against
be viewed by other commenters and * * * * * Women Act of 1994 (42 U.S.C. 14043e–
interested members of the public. At risk of homelessness. (1) An 2(6)), section 330(h)(5)(A) of the Public
Commenters should follow the individual or family who: Health Service Act (42 U.S.C.
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75967
254b(h)(5)(A)), section 3(m) of the Food formerly homeless veterans, and (i) The Continuum(s) of Care that
and Nutrition Act of 2008 (7 U.S.C. homeless and formerly homeless serve(s) the jurisdiction’s geographic
2012(m)), or section 17(b)(15) of the persons that are organized to plan for area;
Child Nutrition Act of 1966 (42 U.S.C. and provide, as necessary, a system of (ii) Public and private agencies that
1786(b)(15)); or outreach, engagement, and assessment; address housing, health, social service,
(3) A child or youth who does not emergency shelter; rapid re-housing; victim services, employment, or
qualify as ‘‘homeless’’ under this transitional housing; permanent education needs of low-income
section, but qualifies as ‘‘homeless’’ housing; and prevention strategies to individuals and families; homeless
under section 725(2) of the McKinney- address the various needs of homeless individuals and families, including
Vento Homeless Assistance Act (42 persons and persons at risk of homeless veterans; youth; and/or other
U.S.C. 11434a(2)), and the parent(s) or homelessness for a specific geographic persons with special needs;
guardian(s) of that child or youth if area. (iii) Publicly funded institutions and
living with her or him. Emergency shelter. Any facility, the systems of care that may discharge
* * * * * primary purpose of which is to provide persons into homelessness (such as
Chronically homeless. (1) An a temporary shelter for the homeless in health-care facilities, mental health
individual who: general or for specific populations of the facilities, foster care and other youth
(i) Is homeless and lives in a place not homeless, and which does not require facilities, and corrections programs and
meant for human habitation, a safe occupants to sign leases or occupancy institutions); and
haven, or in an emergency shelter; and agreements. (iv) Business and civic leaders.
(ii) Has been homeless and living or * * * * * * * * * *
residing in a place not meant for human Homeless Management Information (d) Emergency Solutions Grants
habitation, a safe haven, or in an System (HMIS). The information system (ESG). A jurisdiction that receives an
emergency shelter continuously for at designated by the Continuum of Care to ESG grant must consult with the
least one year or on at least four separate comply with HUD’s data collection, Continuum of Care in determining how
occasions in the last 3 years, where each management, and reporting standards to allocate its ESG grant for eligible
homeless occasion was at least 15 days; and used to collect client-level data and activities; in developing the
and data on the provision of housing and performance standards for, and
(iii) Can be diagnosed with one or services to homeless individuals and evaluating the outcomes of, projects and
more of the following conditions: families and persons at risk of activities assisted by ESG funds; and in
substance use disorder, serious mental homelessness. developing funding, policies, and
illness, developmental disability (as procedures for the operation and
* * * * *
defined in section 102 of the administration of the HMIS.
Rapid re-housing assistance. The
Developmental Disabilities Assistance * * * * *
provision of housing relocation and
Bill of Rights Act of 2000 (42 U.S.C.
stabilization services and short- and/or ■ 5. In § 91.105, paragraph (a)(2) is
15002)), post-traumatic stress disorder,
medium-term rental assistance as revised to read as follows:
cognitive impairments resulting from
necessary to help a homeless individual
brain injury, or chronic physical illness § 91.105 Citizen participation plan; local
or family move as quickly as possible
or disability; governments.
into permanent housing and achieve
(2) An individual who has been (a) * * *
stability in that housing.
residing in an institutional care facility, (2) Encouragement of citizen
including a jail, substance abuse or * * * * * participation. (i) The citizen
mental health treatment facility, Victim service provider. A private participation plan must provide for and
hospital, or other similar facility, for nonprofit organization whose primary encourage citizens to participate in the
fewer than 90 days and met all of the mission is to provide services to victims development of any consolidated plan,
criteria in paragraph (1) of this of domestic violence, dating violence, any substantial amendment to the
definition, before entering that facility; sexual assault, or stalking. This term consolidated plan, and the performance
or includes rape crisis centers, battered report. These requirements are designed
(3) A family with an adult head of women’s shelters, domestic violence especially to encourage participation by
household (or if there is no adult in the transitional housing programs, and low- and moderate-income persons,
family, a minor head of household) who other programs. particularly those living in slum and
meets all of the criteria in paragraph (1) * * * * * blighted areas and in areas where CDBG
of this definition, including a family ■ 4. In § 91.100, paragraph (a)(2) is funds are proposed to be used, and by
whose composition has fluctuated while revised and a new paragraph (d) is residents of predominantly low- and
the head of household has been added to read as follows: moderate-income neighborhoods, as
homeless. defined by the jurisdiction. A
* * * * * § 91.100 Consultation; local governments. jurisdiction is also expected to take
Continuum of Care. The group (a) * * * whatever actions are appropriate to
composed of representatives of relevant (2) When preparing the portions of the encourage the participation of all its
organizations, which generally includes consolidated plan describing the citizens, including minorities and non-
nonprofit homeless providers, victim jurisdiction’s homeless strategy and the English speaking persons, as well as
service providers, faith-based resources available to address the needs persons with disabilities.
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organizations, governments, businesses, of homeless persons (particularly (ii) The jurisdiction shall encourage
advocates, public housing agencies, chronically homeless individuals and the participation of local and regional
school districts, social service providers, families, families with children, institutions, the Continuum of Care and
mental health agencies, hospitals, veterans and their families, and other organizations (including
universities, affordable housing unaccompanied youth) and persons at businesses, developers, nonprofit
developers, law enforcement, risk of homelessness, the jurisdiction organizations, philanthropic
organizations that serve homeless and must consult with: organizations, and community-based
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75968 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
and faith-based organizations) in the (3) Publicly funded institutions and consolidated plan in the process of
process of developing and systems of care that may discharge developing and implementing the
implementing the consolidated plan. persons into homelessness (such as consolidated plan.
(iii) The jurisdiction shall encourage, health-care facilities, mental health (iii) The state should explore
in conjunction with consultation with facilities, foster care and other youth alternative public involvement
public housing agencies, the facilities, and corrections programs and techniques that encourage a shared
participation of residents of public and institutions); and vision of change for the community and
assisted housing developments, in the (4) Business and civic leaders. the review of program performance; e.g.,
process of developing and (c) When preparing the portion of its the use of focus groups and the Internet.
implementing the consolidated plan, consolidated plan concerning lead- * * * * *
along with other low-income residents based paint hazards, the State shall ■ 8. In § 91.200, paragraph (b) is revised
of targeted revitalization areas in which consult with state or local health and to read as follows:
the developments are located. The child welfare agencies and examine
jurisdictions shall make an effort to existing data related to lead-based paint § 91.200 General.
provide information to the public hazards and poisonings, including * * * * *
housing agency (PHA) about health department data on the addresses (b) The jurisdiction shall describe:
consolidated plan activities related to its of housing units in which children have (1) The lead agency or entity
developments and surrounding been identified as lead-poisoned. responsible for overseeing the
communities so that the PHA can make (d) When preparing its method of development of the plan and the
this information available at the annual distribution of assistance under the significant aspects of the process by
public hearing required for the PHA CDBG program, a State must consult which the consolidated plan was
Plan. with local governments in developed;
(iv) The jurisdiction should explore nonentitlement areas of the state. (2) The identity of the agencies,
alternative public involvement (e) The State must also consult with groups, organizations, and others who
techniques and quantitative ways to each Continuum of Care within the state participated in the process; and
measure efforts that encourage citizen in determining how to allocate its ESG (3) A jurisdiction’s consultations
participation in a shared vision for grant for eligible activities; developing with:
change in communities and the performance standards for, and (i) The Continuum of Care that serves
neighborhoods, and the review of evaluating the outcomes of, projects and the jurisdiction’s geographic area;
program performance; e.g., use of focus activities assisted by ESG funds; and (ii) Public and private agencies that
groups and the Internet. developing funding, policies, and address housing, health, social services,
* * * * * procedures for the operation and employment, or education needs of low-
administration of the HMIS. income individuals and families, of
■ 6. Section 91.110 is revised to read as
■ 7. In § 91.115, paragraph (a)(2) is
homeless individuals and families, of
follows: youth, and/or of other persons with
revised to read as follows:
§ 91.110 Consultation; States. special needs;
(a) When preparing the consolidated § 91.115 Citizen participation plan; States. (iii) Publicly funded institutions and
plan, the State shall consult with other (a) * * * systems of care that may discharge
public and private agencies that provide (2) Encouragement of citizen persons into homelessness (such as
assisted housing (including any state participation. (i) The citizen health-care facilities, mental health
housing agency administering public participation plan must provide for and facilities, foster care and other youth
housing), health services, and social and encourage citizens to participate in the facilities, and corrections programs and
fair housing services (including those development of the consolidated plan, institutions);
focusing on services to children, elderly any substantial amendments to the (iv) Other entities.
persons, persons with disabilities, consolidated plan, and the performance * * * * *
persons with HIV/AIDS and their report. These requirements are designed ■ 9. In § 91.205, paragraph (b)(1) and
families, and homeless persons) during especially to encourage participation by paragraph (c) are revised to read as
preparation of the consolidated plan. low- and moderate-income persons, follows:
(b) When preparing the portions of the particularly those living in slum and
blighted areas and in areas where CDBG § 91.205 Housing and homeless needs
consolidated plan describing the State’s
assessment.
homeless strategy and the resources funds are proposed to be used, and by
available to address the needs of residents of predominantly low- and * * * * *
homeless persons (particularly moderate-income neighborhoods. A (b)(1)(i) The plan shall estimate the
chronically homeless individuals and State is also expected to take whatever number and type of families in need of
families, families with children, actions are appropriate to encourage the housing assistance for:
participation of all its citizens, (A) Extremely low-income, low-
veterans and their families, and
including minorities and non-English income, moderate-income, and middle-
unaccompanied youth) and persons at
speaking persons, as well as persons income families;
risk of homelessness, the State must (B) Renters and owners;
consult with: with disabilities. (C) Elderly persons;
(1) Each Continuum of Care within (ii) The State shall encourage the (D) Single persons;
the state; participation of local, regional, and (E) Large families;
(2) Public and private agencies that statewide institutions, Continuums of
pmangrum on DSK3VPTVN1PROD with RULES2
(F) Public housing residents;
address housing, health, social services, Care, and other organizations (including (G) Families on the public housing
victim services, employment, or businesses, developers, nonprofit and Section 8 tenant-based waiting list;
education needs of low-income organizations, philanthropic (H) Persons with HIV/AIDS and their
individuals and families; of homeless organizations, and community-based families;
individuals and families, including and faith-based organizations) that are (I) Victims of domestic violence,
homeless veterans; youth; and/or of involved with or affected by the dating violence, sexual assault, and
other persons with special needs; programs or activities covered by the stalking;
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75969
(J) Persons with disabilities; and linked with instability and an increased describe proposed accomplishments,
(K) Formerly homeless families and risk of homelessness. that the jurisdiction hopes to achieve
individuals who are receiving rapid re- * * * * * and must specify the number of
housing assistance and are nearing the 10. In § 91.210, paragraph (c) is extremely low-income, low-income, and
termination of that assistance. revised to read as follows: moderate-income families, and
(ii) The description of housing needs homeless persons to whom the
shall include a concise summary of the § 91.210 Housing market analysis. jurisdiction will provide affordable
cost burden and severe cost burden, * * * * * housing as defined in 24 CFR 92.252 for
overcrowding (especially for large (c) Facilities, housing, and services for rental housing and 24 CFR 92.254 for
families), and substandard housing homeless persons. The plan must homeownership over a specific time
conditions being experienced by include a brief inventory of facilities, period.
extremely low-income, low-income, housing, and services that meet the
* * * * *
moderate-income, and middle-income needs of homeless persons within the (d) Homelessness. The consolidated
renters and owners compared to the jurisdiction, particularly chronically plan must include the priority homeless
jurisdiction as a whole. (The homeless individuals and families, needs table prescribed by HUD and
jurisdiction must define in its families with children, veterans and must describe the jurisdiction’s strategy
consolidated plan the terms ‘‘standard their families, and unaccompanied for reducing and ending homelessness
condition’’ and ‘‘substandard condition youth. through:
but suitable for rehabilitation.’’) (1) The inventory of facilities and
(1) Reaching out to homeless persons
housing (e.g., emergency shelter,
* * * * * (especially unsheltered persons) and
transitional housing, and permanent
(c) Persons who are homeless or at assessing their individual needs;
supportive housing) must be presented (2) Addressing the emergency shelter
risk of homelessness. (1) The plan must
in a form specified by HUD. and transitional housing needs of
describe, in a form prescribed by HUD, (2) The inventory of services must
the nature and extent of unsheltered and homeless persons;
include both services targeted to
sheltered homelessness, including rural (3) Helping homeless persons
homeless persons and mainstream
homelessness, within the jurisdiction. (especially chronically homeless
services, such as health, mental health,
At a minimum, the recipient must use individuals and families, families with
and employment services to the extent
data from the Homeless Management children, veterans and their families,
those services are used to complement
Information System (HMIS) and data and unaccompanied youth) make the
services targeted to homeless persons.
from the Point-In-Time (PIT) count transition to permanent housing and
conducted in accordance with HUD * * * * * independent living, including
■ 11. In § 91.215, paragraphs (b), (d), (k),
standards. shortening the period of time
and (l) are revised to read as follows: individuals and families experience
(i) The description must include, for
each category of homeless persons § 91.215 Strategic plan. homelessness, facilitating access for
specified by HUD (including chronically * * * * * homeless individuals and families to
homeless individuals and families, (b) Affordable housing. With respect affordable housing units, and preventing
families with children, veterans and to affordable housing, the consolidated individuals and families who were
their families, and unaccompanied plan must include the priority housing recently homeless from becoming
youth), the number of persons needs table prescribed by HUD and homeless again; and
experiencing homelessness on a given must do the following: (4) Helping low-income individuals
night, the number of persons who (1) The affordable housing section and families avoid becoming homeless,
experience homelessness each year, the shall describe how the characteristics of especially extremely low-income
number of persons who lose their the housing market and the severity of individuals and families who are:
housing and become homeless each housing problems and needs of (i) Likely to become homeless after
year, the number of persons who exit extremely low-income, low-income, and being discharged from publicly funded
homelessness each year, the number of moderate-income renters and owners, institutions and systems of care into
days that persons experience persons at risk of homelessness, and homelessness (such as health-care
homelessness, and other measures homeless persons identified in facilities, mental health facilities, foster
specified by HUD. accordance with § 91.205 provided the care and other youth facilities, and
(ii) The plan also must contain a brief rationale for establishing allocation corrections programs and institutions)
narrative description of the nature and priorities and use of funds made or
extent of homelessness by racial and available for rental assistance, (ii) Receiving assistance from public
ethnic group, to the extent information production of new units, rehabilitation and private agencies that address
is available. of existing units, or acquisition of housing, health, social services,
(2) The plan must include a narrative existing units (including preserving employment, education, or youth needs.
description of the characteristics and affordable housing units that may be * * * * *
needs of low-income individuals and lost from the assisted housing inventory (k) Institutional structure. The
families with children (especially for any reason). Household and income consolidated plan must provide a
extremely low-income) who are types may be grouped together for concise summary of the institutional
currently housed but threatened with discussion where the analysis would structure, including private industry;
homelessness. This information may be apply to more than one of them. If the nonprofit organizations; community and
pmangrum on DSK3VPTVN1PROD with RULES2
evidenced by the characteristics and jurisdiction intends to use HOME funds faith-based organizations; philanthropic
needs of individuals and families with for tenant-based assistance, the organizations; the Continuum of Care;
children who are currently entering the jurisdiction must specify local market and public institutions, departments
homeless assistance system or appearing conditions that led to the choice of that and agencies through which the
for the first time on the streets. The option. jurisdiction will carry out its housing,
description must also specify particular (2) The affordable housing section homeless, and community development
housing characteristics that have been shall include specific objectives that plan; a brief assessment of the strengths
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75970 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
and gaps in that delivery system; and a especially extremely low-income activities assisted by ESG funds; and
concise summary of what the individuals and families who are: developing funding, policies, and
jurisdiction will do to overcome gaps in (A) Being discharged from publicly procedures for the administration and
the institutional structure for carrying funded institutions and systems of care, operation of the HMIS.
out its strategy for addressing its priority such as health-care facilities, mental ■ 13. In § 91.225, paragraph (c) is
needs. health facilities, foster care and other revised to read as follows:
(l) Coordination. The consolidated youth facilities, and corrections
plan must provide a concise summary of programs and institutions; or § 91.225 Certifications.
the jurisdiction’s activities to enhance (B) Receiving assistance from public * * * * *
coordination among the Continuum of and private agencies that address (c) ESG. For jurisdictions that seek
Care, public and assisted housing housing, health, social services, ESG funding under 24 CFR part 576, the
providers, and private and employment, education, or youth needs. following certifications are required:
governmental health, mental health, and (2) The jurisdiction must specify the (1) If an emergency shelter’s
service agencies. The summary must activities that it plans to undertake rehabilitation costs exceed 75 percent of
address the jurisdiction’s efforts to during the next year to address the the value of the building before
coordinate housing assistance and housing and supportive service needs rehabilitation, the jurisdiction will
services for homeless persons identified in accordance with maintain the building as a shelter for
(especially chronically homeless § 91.215(e) with respect to persons who homeless individuals and families for a
are not homeless but have other special minimum of 10 years after the date the
individuals and families, families with
needs. building is first occupied by a homeless
children, veterans and their families,
individual or family after the completed
and unaccompanied youth) and persons * * * * * rehabilitation;
who were recently homeless but now (l) * * * (2) If the cost to convert a building
live in permanent housing. With respect (4) ESG. (i) The jurisdiction must into an emergency shelter exceeds 75
to the public entities involved, the plan include its written standards for percent of the value of the building after
must describe the means of cooperation providing ESG assistance. The conversion, the jurisdiction will
and coordination among the State and minimum requirements regarding these maintain the building as a shelter for
any units of general local government in standards are set forth in 24 CFR homeless individuals and families for a
the metropolitan area in the 576.400(e)(1) and (e)(3). minimum of 10 years after the date the
implementation of its consolidated plan. (ii) If the Continuum of Care for the building is first occupied by a homeless
With respect to economic development, jurisdiction’s area has established a individual or family after the completed
the jurisdiction should describe efforts centralized or coordinated assessment conversion;
to enhance coordination with private system that meets HUD requirements, (3) In all other cases where ESG funds
industry, businesses, developers, and the jurisdiction must describe that are used for renovation, the jurisdiction
social service agencies. centralized or coordinated assessment will maintain the building as a shelter
■ 12. In § 91.220, paragraph (i) is system. The requirements for using a for homeless individuals and families
revised and a new paragraph (l)(4) is centralized or coordinated assessment for a minimum of 3 years after the date
added to read as follows: system, including the exception for the building is first occupied by a
victim service providers, are set forth homeless individual or family after the
§ 91.220 Action plan.
under 24 CFR 576.400(d). completed renovation;
* * * * * (iii) The jurisdiction must identify its (4) In the case of assistance involving
(i) Homeless and other special needs process for making subawards and a shelter operations or essential services
activities. (1) The jurisdiction must description of how the jurisdiction related to street outreach or emergency
describe its one-year goals and specific intends to make its allocation available shelter, the jurisdiction will provide
actions steps for reducing and ending to private nonprofit organizations services or shelter to homeless
homelessness through: (including community and faith-based individuals and families for the period
(i) Reaching out to homeless persons organizations), and in the case of urban during which the ESG assistance is
(especially unsheltered persons) and counties, funding to participating units provided, without regard to a particular
assessing their individual needs; of local government. site or structure, so long as the
(ii) Addressing the emergency shelter (iv) If the jurisdiction is unable to jurisdiction serves the same type of
and transitional housing needs of meet the homeless participation persons (e.g., families with children,
homeless persons; and requirement in 24 CFR 576.405(a), the unaccompanied youth, disabled
(iii) Helping homeless persons jurisdiction must specify its plan for individuals, or victims of domestic
(especially chronically homeless reaching out to and consulting with violence) or persons in the same
individuals and families, families with homeless or formerly homeless geographic area;
children, veterans and their families, individuals in considering and making (5) Any renovation carried out with
and unaccompanied youth) make the policies and decisions regarding any ESG assistance shall be sufficient to
transition to permanent housing and facilities or services that receive funding ensure that the building involved is safe
independent living, including under ESG. and sanitary;
shortening the period of time that (v) The jurisdiction must describe the (6) The jurisdiction will assist
individuals and families experience performance standards for evaluating homeless individuals in obtaining
homelessness, facilitating access for ESG activities. permanent housing, appropriate
pmangrum on DSK3VPTVN1PROD with RULES2
homeless individuals and families to (vi) The jurisdiction must describe its supportive services (including medical
affordable housing units, and preventing consultation with each Continuum of and mental health treatment, victim
individuals and families who were Care that serves the jurisdiction in services, counseling, supervision, and
recently homeless from becoming determining how to allocate ESG funds other services essential for achieving
homeless again; and each program year; developing the independent living), and other Federal,
(iv) Helping low-income individuals performance standards for, and State, local, and private assistance
and families avoid becoming homeless, evaluating the outcomes of, projects and available for these individuals;
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75971
(7) The jurisdiction will obtain (iii) Publicly funded institutions and experience homelessness each year, the
matching amounts required under 24 systems of care that may discharge number of persons who lose their
CFR 576.201; persons into homelessness (such as housing and become homeless each
(8) The jurisdiction has established health-care facilities, mental health year, the number of persons who exit
and is implementing procedures to facilities, foster care and other youth homelessness each year, and the
ensure the confidentiality of records facilities, and corrections programs and number of days that persons experience
pertaining to any individual provided institutions); and homelessness, and any other measures
family violence prevention or treatment (iv) Other entities. specified by HUD.
services under any project assisted * * * * * (ii) The plan also must contain a brief
under the ESG program, including narrative description of the nature and
■ 15. In § 91.305, paragraphs (b)(1) and
protection against the release of the extent of homelessness by racial and
(c) are revised to read as follows: ethnic group, to the extent that
address or location of any family
violence shelter project, except with the § 91.305 Housing and homeless needs information is available.
written authorization of the person assessment. (2) The plan must include a narrative
responsible for the operation of that * * * * * description of the characteristics and
shelter; (b)(1)(i) The plan shall estimate the needs of low-income individuals and
(9) To the maximum extent number and type of families in need of families with children (especially
practicable, the jurisdiction will housing assistance for: extremely low-income) who are
involve, through employment, volunteer (A) Extremely low-income, low- currently housed but threatened with
services, or otherwise, homeless income, moderate-income, and middle- homelessness. This information may be
individuals and families in income families; evidenced by the characteristics and
constructing, renovating, maintaining, (B) Renters and owners; needs of individuals and families with
and operating facilities assisted under (C) Elderly persons; children who are currently entering the
the ESG program, in providing services (D) Single persons; homeless assistance system or appearing
assisted under the program, and in (E) Large families; for the first time on the streets. The
providing services for occupants of (F) Public housing residents; description must also include specific
facilities assisted under the program; (G) Families on the public housing housing characteristics linked to
(10) All activities the jurisdiction and Section 8 tenant-based waiting list; instability and an increased risk of
undertakes with assistance under ESG (H) Persons with HIV/AIDS and their homelessness.
are consistent with the jurisdiction’s families; * * * * *
consolidated plan; and (I) Victims of domestic violence, ■ 16. In § 91.310, paragraph (b) is
(11) The jurisdiction will establish dating violence, sexual assault, and revised to read as follows:
and implement, to the maximum extent stalking;
§ 91.310 Housing market analysis.
practicable and where appropriate, (J) Persons with disabilities; and
policies and protocols for the discharge (K) Formerly homeless families and * * * * *
of persons from publicly funded individuals who are receiving rapid re- (b) Facilities, housing, and services for
homeless persons. The plan must
institutions or systems of care (such as housing assistance and are nearing the
include a brief inventory of facilities
health-care facilities, mental health termination of that assistance.
and services that meet the needs of
facilities, foster care or other youth (ii) The description of housing needs
homeless persons within the state,
facilities, or correction programs and shall include a concise summary of the
particularly chronically homeless
institutions) in order to prevent this cost burden and severe cost burden,
individuals and families, families with
discharge from immediately resulting in overcrowding (especially for large
children, veterans and their families,
homelessness for these persons. families), and substandard housing
and unaccompanied youth.
* * * * * conditions being experienced by (1) The inventory of facilities and
■ 14. In § 91.300, paragraph (b) is
extremely low-income, low-income, housing (e.g., emergency shelter,
revised to read as follows: moderate-income, and middle-income transitional housing, and permanent
renters and owners compared to the supportive housing) must be presented
§ 91.300 General. state as a whole. (The state must define in a form specified by HUD.
* * * * * in its consolidated plan the terms (2) The inventory of services must
(b) The State shall describe: ‘‘standard condition’’ and ‘‘substandard include both services targeted to
(1) The lead agency or entity condition but suitable for homeless persons and mainstream
responsible for overseeing the rehabilitation.’’) services, such as health, mental health,
development of the plan and the * * * * * and employment services to the extent
significant aspects of the process by (c) Persons who are homeless or at those services are used to complement
which the consolidated plan was risk of homelessness. (1) The plan must services targeted to homeless persons.
developed; describe, in a form prescribed by HUD, * * * * *
(2) The identity of the agencies, the nature and extent of homelessness, ■ 17. In § 91.315, paragraphs (b), (d), (k),
groups, organizations, and others who including rural homelessness, within and (l) are revised to read as follows:
participated in the process; the state.
(3) The State’s consultations with: (i) The description must include, for § 91.315 Strategic plan.
(i) Continuums of Care; each category of homeless persons
pmangrum on DSK3VPTVN1PROD with RULES2
* * * * *
(ii) Public and private agencies that specified by HUD (including chronically (b) Affordable housing. With respect
address housing, health, social services, homeless individuals and families, to affordable housing, the consolidated
employment, or education needs of low- families with children, veterans and plan must include the priority housing
income individuals and families, their families, and unaccompanied needs table prescribed by HUD and the
homeless individuals and families, youth), the number of persons following:
youth, and/or other persons with special experiencing homelessness on a given (1) The affordable housing section
needs; night, the number of persons who shall describe how the characteristics of
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75972 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
the housing market and the severity of (i) Likely to become homeless after (i) Reaching out to homeless persons
housing problems and needs of being discharged from publicly funded (especially unsheltered persons) and
extremely low-income, low-income, and institutions and systems of care (such as assessing their individual needs;
moderate-income renters and owners, health-care facilities, mental health (ii) Addressing the emergency shelter
persons at risk of homelessness, and facilities, foster care and other youth and transitional housing needs of
homeless persons identified in facilities, and corrections programs and homeless persons;
accordance with § 91.305 provided the institutions); or (iii) Helping homeless persons
rationale for establishing allocation (ii) Receiving assistance from public (especially chronically homeless
priorities and use of funds made or private agencies that address housing, individuals and families, families with
available for rental assistance, health, social services, employment, children, veterans and their families,
production of new units, rehabilitation education, or youth needs. and unaccompanied youth) make the
of existing units, or acquisition of * * * * * transition to permanent housing and
existing units (including preserving (k) Institutional structure. The independent living, including
affordable housing units that may be consolidated plan must provide a shortening the period of time that
lost from the assisted housing inventory concise summary of the institutional individuals and families experience
for any reason). Household and income structure, including businesses, homelessness, facilitating access for
types may be grouped together for developers, nonprofit organizations, homeless individuals and families to
discussion where the analysis would philanthropic organizations, affordable housing units, and preventing
apply to more than one of them. If the community-based and faith-based individuals and families who were
State intends to use HOME funds for organizations, the Continuum of Care, recently homeless from becoming
tenant-based rental assistance, the State and public institutions, departments, homeless again; and
must specify local market conditions and agencies through which the State (iv) Helping low-income individuals
that led to the choice of that option. will carry out its housing, homeless, and and families avoid becoming homeless,
(2) The affordable housing section community development plan; a brief especially extremely low-income
shall include specific objectives that assessment of the strengths and gaps in individuals and families who are:
describe proposed accomplishments that delivery system; and a concise (A) Being discharged from publicly
that the jurisdiction hopes to achieve summary of what the State will do to funded institutions and systems of care
and must specify the number of overcome gaps in the institutional (such as health-care facilities, mental
extremely low-income, low-income, and structure for carrying out its strategy for health facilities, foster care and other
moderate-income families, and addressing its priority needs. youth facilities, and corrections
homeless persons to whom the (l) Coordination. The consolidated programs and institutions); or
jurisdiction will provide affordable plan must provide a concise summary of (B) Receiving assistance from public
housing as defined in 24 CFR 92.252 for the jurisdiction’s activities to enhance or private agencies that address housing,
rental housing and 24 CFR 92.254 for coordination among Continuums of health, social services, employment,
homeownership over a specific time Care, public and assisted housing education, or youth needs.
period. providers, and private and (2) The State must specify the
* * * * * governmental health, mental health, and activities that it plans to undertake
(d) Homelessness. The consolidated service agencies. The summary must during the next year to address the
plan must include the priority homeless include the jurisdiction’s efforts to housing and supportive service needs
needs table prescribed by HUD and coordinate housing assistance and identified in accordance with
must describe the State’s strategy for services for homeless persons § 91.315(e) with respect to persons who
reducing and ending homelessness (especially chronically homeless are not homeless but have other special
through: individuals and families, families with needs.
(1) Reaching out to homeless persons children, veterans and their families, * * * * *
(especially unsheltered persons) and and unaccompanied youth) and persons (k) * * *
assessing their individual needs; who were recently homeless but now (3) ESG. (i) The State must either
(2) Addressing the emergency shelter live in permanent housing. With respect include its written standards for
and transitional housing needs of to the public entities involved, the plan providing Emergency Solutions Grant
homeless persons; must describe the means of cooperation (ESG) assistance or describe its
(3) Helping homeless persons and coordination among the State and requirements for its subrecipients to
(especially chronically homeless any units of general local government in establish and implement written
individuals and families, families with the implementation of its consolidated standards for providing ESG assistance.
children, veterans and their families, plan. With respect to economic The minimum requirements regarding
and unaccompanied youth) make the development, the State should describe these standards are set forth in 24 CFR
transition to permanent housing and efforts to enhance coordination with 576.400(e)(2) and (e)(3).
independent living, including private industry, businesses, developers, (ii) For each area of the State in which
shortening the period of time and social service agencies. a Continuum of Care has established a
individuals and families experience * * * * * centralized or coordinated assessment
homelessness, facilitating access for ■ 18. In § 91.320, paragraphs (h) and system that meets HUD requirements,
homeless individuals and families to (k)(3) are revised to read as follows: the State must describe that centralized
affordable housing units, and preventing or coordinated assessment system. The
pmangrum on DSK3VPTVN1PROD with RULES2
individuals and families who were § 91.320 Action plan. requirements for using a centralized or
recently homeless from becoming * * * * * coordinated assessment system,
homeless again; and (h) Homeless and other special needs including the exception for victim
(4) Helping low-income individuals activities. (1) The State must describe its service providers, are set forth under 24
and families avoid becoming homeless, one-year goals and specific actions steps CFR 576.400(d).
especially extremely low-income for reducing and ending homelessness (iii) The State must identify its
individuals and families who are: through: process for making subawards and a
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75973
description of how the State intends to of 10 years after the date the building is (g) are redesignated as paragraphs (d),
make its allocation available to units of first occupied by a homeless individual (e), (f), (h), and (i), respectively, and
general local government and private or family after the completed new paragraphs (c) and (g) are added to
nonprofit organizations, including rehabilitation; read as follows:
community and faith-based (ii) If the cost to convert a building
§ 91.520 Performance reports.
organizations. into an emergency shelter exceeds 75
(iv) The State must describe the percent of the value of the building after * * * * *
performance standards for evaluating conversion, the building will be (b) Affordable housing. The report
ESG activities. maintained as a shelter for homeless shall include an evaluation of the
(v) The State must describe its individuals and families for a minimum jurisdiction’s progress in meeting its
consultation with each Continuum of of 10 years after the date the building is specific objective of providing
Care in determining how to allocate ESG first occupied by a homeless individual affordable housing, including the
funds each program year; developing or family after the completed number and types of families served.
the performance standards for, and conversion; This element of the report must include
evaluating the outcomes of, projects and (iii) In all other cases where ESG the number of extremely low-income,
activities assisted by ESG funds; and funds are used for renovation, the low-income, moderate-income, middle-
developing funding, policies and building will be maintained as a shelter income, and homeless persons served.
procedures for the administration and for homeless individuals and families (c) Homelessness. The report must
operation of the HMIS. for a minimum of 3 years after the date include, in a form prescribed by HUD,
the date the building is first occupied by an evaluation of the jurisdiction’s
* * * * * progress in meeting its specific
a homeless individual or family after the
■ 19. In § 91.325, paragraph (c) is objectives for reducing and ending
completed renovation;
revised to read as follows: homelessness through:
(iv) If ESG funds are used for shelter
operations or essential services related (1) Reaching out to homeless persons
§ 91.325 Certifications.
to street outreach or emergency shelter, (especially unsheltered persons) and
* * * * * assessing their individual needs;
(c) ESG. Each State that seeks funding the subrecipient will provide services or
(2) Addressing the emergency shelter
under ESG must provide the following shelter to homeless individuals and
and transitional housing needs of
certifications: families for the period during which the
homeless persons;
(1) The State will obtain any matching ESG assistance is provided, without (3) Helping homeless persons
amounts required under 24 CFR 576.201 regard to a particular site or structure, (especially chronically homeless
in a manner so that its subrecipients so long as the applicant serves the same individuals and families, families with
that are least capable of providing type of persons (e.g., families with children, veterans and their families,
matching amounts receive the benefit of children, unaccompanied youth, and unaccompanied youth) make the
the exception under 24 CFR veterans, disabled individuals, or transition to permanent housing and
576.201(a)(2); victims of domestic violence) or persons independent living, including
(2) The State will establish and in the same geographic area; shortening the period of time that
implement, to the maximum extent (v) Any renovation carried out with
individuals and families experience
practicable and where appropriate, ESG assistance shall be sufficient to
homelessness, facilitating access for
policies, and protocols for the discharge ensure that the building involved is safe
homeless individuals and families to
of persons from publicly funded and sanitary;
affordable housing units, and preventing
institutions or systems of care (such as (vi) The subrecipient will assist
individuals and families who were
health-care facilities, mental health homeless individuals in obtaining
recently homeless from becoming
facilities, foster care or other youth permanent housing, appropriate
homeless again; and
facilities, or correction programs and supportive services (including medical (4) Helping low-income individuals
institutions) in order to prevent this and mental health treatment, and families avoid becoming homeless,
discharge from immediately resulting in counseling, supervision, and other especially extremely low-income
homelessness for these persons; services essential for achieving individuals and families and those who
(3) The State will develop and independent living), and other Federal, are
implement procedures to ensure the State, local, and private assistance (i) Likely to become homeless after
confidentiality of records pertaining to available for such individuals; being discharged from publicly funded
any individual provided family violence (vii) To the maximum extent institutions and systems of care (such as
prevention or treatment services under practicable, the subrecipient will health-care facilities, mental health
any project assisted under the ESG involve, through employment, volunteer facilities, foster care and other youth
program, including protection against services, or otherwise, homeless facilities, and corrections programs and
the release of the address or location of individuals and families in institutions);
any family violence shelter project, constructing, renovating, maintaining, (ii) Receiving assistance from public
except with the written authorization of and operating facilities assisted under or private agencies that address housing,
the person responsible for the operation ESG, in providing services assisted health, social services, employment,
of that shelter; and under ESG, and in providing services education, or youth needs.
(4) The State will ensure that its for occupants of facilities assisted under * * * * *
subrecipients comply with the following ESG; and (g) ESG. For jurisdictions receiving
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criteria: (viii) All activities the subrecipient funding under the ESG program
(i) If an emergency shelter’s undertakes with assistance under ESG provided in 24 CFR part 576, the report,
rehabilitation costs exceed 75 percent of are consistent with the State’s current in a form prescribed by HUD, must
the value of the building before HUD-approved consolidated plan. include the number of persons assisted,
rehabilitation, the building will be * * * * * the types of assistance provided, and the
maintained as a shelter for homeless ■ 20. In § 91.520, paragraph (b) is project or program outcomes data
individuals and families for a minimum revised, paragraphs (c), (d), (e), (f), and measured under the performance
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75974 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
standards developed in consultation Subpart A—General Provisions facility, or correction program or
with the Continuum(s) of Care. institution); or
§ 576.1 Applicability and purpose. (G) Otherwise lives in housing that
* * * * *
This part implements the Emergency has characteristics associated with
■ 21. Part 576 is revised to read as Solutions Grants (ESG) program instability and an increased risk of
follows: authorized by subtitle B of title IV of the homelessness, as identified in the
McKinney-Vento Homeless Assistance recipient’s approved consolidated plan;
PART 576—EMERGENCY SOLUTIONS Act (42 U.S.C. 11371–11378). The (2) A child or youth who does not
GRANTS PROGRAM program authorizes the Department of qualify as ‘‘homeless’’ under this
Subpart A—General Provisions Housing and Urban Development (HUD) section, but qualifies as ‘‘homeless’’
to make grants to States, units of general under section 387(3) of the Runaway
Sec. purpose local government, and and Homeless Youth Act (42 U.S.C.
576.1 Applicability and purpose. territories for the rehabilitation or 5732a(3)), section 637(11) of the Head
576.2 Definitions. Start Act (42 U.S.C. 9832(11)), section
conversion of buildings for use as
576.3 Allocation of funding. 41403(6) of the Violence Against
emergency shelter for the homeless, for
Subpart B—Program Components and the payment of certain expenses related Women Act of 1994 (42 U.S.C. 14043e–
Eligible Activities to operating emergency shelters, for 2(6)), section 330(h)(5)(A) of the Public
essential services related to emergency Health Service Act (42 U.S.C.
576.100 General provisions and
expenditure limits. shelters and street outreach for the 254b(h)(5)(A)), section 3(m) of the Food
576.101 Street outreach component. homeless, and for homelessness and Nutrition Act of 2008 (7 U.S.C.
576.102 Emergency shelter component. prevention and rapid re-housing 2012(m)), or section 17(b)(15) of the
576.103 Homelessness prevention assistance. Child Nutrition Act of 1966 (42 U.S.C.
component. 1786(b)(15)); or
576.104 Rapid re-housing assistance
§ 576.2 Definitions. (3) A child or youth who does not
component. At risk of homelessness means: (1) An qualify as ‘‘homeless’’ under this
576.105 Housing relocation and individual or family who: section, but qualifies as ‘‘homeless’’
stabilization services. (i) Has an annual income below 30 under section 725(2) of the McKinney-
576.106 Short-term and medium-term percent of median family income for the Vento Homeless Assistance Act (42
rental assistance. area, as determined by HUD; U.S.C. 11434a(2)), and the parent(s) or
576.107 HMIS component. (ii) Does not have sufficient resources guardian(s) of that child or youth if
576.108 Administrative activities. or support networks, e.g., family, living with her or him.
576.109 Indirect costs. Consolidated plan means a plan
friends, faith-based or other social
prepared in accordance with 24 CFR
Subpart C—Award and Use of Funds networks, immediately available to
part 91. An approved consolidated plan
prevent them from moving to an
576.200 Submission requirements and means a consolidated plan that has been
emergency shelter or another place
grant approval. approved by HUD in accordance with
described in paragraph (1) of the
576.201 Matching requirement. 24 CFR part 91.
‘‘homeless’’ definition in this section; Continuum of Care means the group
576.202 Means of carrying out grant
activities.
and composed of representatives of relevant
576.203 Obligation, expenditure, and (iii) Meets one of the following organizations, which generally includes
payment requirements. conditions: nonprofit homeless providers; victim
(A) Has moved because of economic service providers; faith-based
Subpart D—Reallocations reasons two or more times during the 60 organizations; governments; businesses;
576.300 In general. days immediately preceding the advocates; public housing agencies;
576.301 Metropolitan cities and urban application for homelessness prevention school districts; social service providers;
counties. assistance; mental health agencies; hospitals;
576.302 States. (B) Is living in the home of another universities; affordable housing
576.303 Territories. because of economic hardship; developers; law enforcement;
576.304 Alternative method. (C) Has been notified in writing that organizations that serve homeless and
Subpart E—Program Requirements their right to occupy their current formerly homeless veterans, and
housing or living situation will be homeless and formerly homeless
576.400 Area-wide systems coordination
terminated within 21 days after the date persons that are organized to plan for
requirements.
of application for assistance; and provide, as necessary, a system of
576.401 Evaluation of program participant
eligibility and needs. (D) Lives in a hotel or motel and the outreach, engagement, and assessment;
576.402 Terminating assistance. cost of the hotel or motel stay is not paid emergency shelter; rapid re-housing;
576.403 Shelter and housing standards. by charitable organizations or by transitional housing; permanent
576.404 Conflicts of interest. Federal, State, or local government housing; and prevention strategies to
576.405 Homeless participation. programs for low-income individuals; address the various needs of homeless
576.406 Faith-based activities. (E) Lives in a single-room occupancy persons and persons at risk of
576.407 Other Federal requirements. or efficiency apartment unit in which homelessness for a specific geographic
576.408 Displacement, relocation, and there reside more than two persons or area.
acquisition. lives in a larger housing unit in which Emergency shelter means any facility,
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there reside more than 1.5 persons the primary purpose of which is to
Subpart F—Grant Administration
reside per room, as defined by the U.S. provide a temporary shelter for the
576.500 Recordkeeping and reporting Census Bureau; homeless in general or for specific
requirements. (F) Is exiting a publicly funded populations of the homeless and which
576.501 Enforcement. institution, or system of care (such as a does not require occupants to sign
Authority: 42 U.S.C. 11371 et seq., 42 health-care facility, a mental health leases or occupancy agreements. Any
U.S.C. 3535(d). facility, foster care or other youth project funded as an emergency shelter
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75975
under a Fiscal Year 2010 Emergency (iii) Have experienced persistent public housing agency or housing
Solutions grant may continue to be instability as measured by two moves or finance agency.
funded under ESG. more during the 60-day period Program income shall have the
Homeless means: immediately preceding the date of meaning provided in 24 CFR 85.25.
(1) An individual or family who lacks applying for homeless assistance; and Program income includes any amount of
a fixed, regular, and adequate nighttime (iv) Can be expected to continue in a security or utility deposit returned to
residence, meaning: such status for an extended period of the recipient or subrecipient.
(i) An individual or family with a time because of chronic disabilities, Program participant means an
primary nighttime residence that is a chronic physical health or mental health individual or family who is assisted
public or private place not designed for conditions, substance addiction, under ESG program.
or ordinarily used as a regular sleeping histories of domestic violence or Program year means the consolidated
accommodation for human beings, childhood abuse (including neglect), the program year established by the
including a car, park, abandoned presence of a child or youth with a recipient under 24 CFR part 91.
building, bus or train station, airport, or disability, or two or more barriers to Recipient means any State, territory,
camping ground; employment, which include the lack of metropolitan city, or urban county, or in
(ii) An individual or family living in a high school degree or General the case of reallocation, any unit of
a supervised publicly or privately Education Development (GED), general purpose local government that is
operated shelter designated to provide illiteracy, low English proficiency, a approved by HUD to assume financial
temporary living arrangements history of incarceration or detention for responsibility and enters into a grant
(including congregate shelters, criminal activity, and a history of agreement with HUD to administer
transitional housing, and hotels and unstable employment; or assistance under this part.
motels paid for by charitable (4) Any individual or family who: State means each of the several States
organizations or by federal, state, or (i) Is fleeing, or is attempting to flee, and the Commonwealth of Puerto Rico.
local government programs for low- domestic violence, dating violence, Subrecipient means a unit of general
income individuals); or sexual assault, stalking, or other purpose local government or private
(iii) An individual who is exiting an dangerous or life-threatening conditions nonprofit organization to which a
institution where he or she resided for that relate to violence against the recipient makes available ESG funds.
90 days or less and who resided in an individual or a family member, Territory means each of the following:
emergency shelter or place not meant including a child, that has either taken the Virgin Islands, Guam, American
for human habitation immediately place within the individual’s or family’s Samoa, and the Northern Mariana
before entering that institution; primary nighttime residence or has Islands.
(2) An individual or family who will Unit of general purpose local
made the individual or family afraid to
imminently lose their primary nighttime government means any city, county,
return to their primary nighttime
residence, provided that: town, township, parish, village, or other
(i) The primary nighttime residence residence;
general purpose political subdivision of
will be lost within 14 days of the date (ii) Has no other residence; and
a State.
of application for homeless assistance; (iii) Lacks the resources or support Urban county means a county that
(ii) No subsequent residence has been networks, e.g., family, friends, faith- was classified as an urban county under
identified; and based or other social networks, to obtain 42 U.S.C. 5302(a) for the fiscal year
(iii) The individual or family lacks the other permanent housing. immediately preceding the fiscal year
resources or support networks, e.g., Homeless Management Information for which ESG funds are made available.
family, friends, faith-based or other System (HMIS) means the information Victim service provider means a
social networks, needed to obtain other system designated by the Continuum of private nonprofit organization whose
permanent housing; Care to comply with the HUD’s data primary mission is to provide services
(3) Unaccompanied youth under 25 collection, management, and reporting to victims of domestic violence, dating
years of age, or families with children standards and used to collect client- violence, sexual assault, or stalking.
and youth, who do not otherwise level data and data on the provision of This term includes rape crisis centers,
qualify as homeless under this housing and services to homeless battered women’s shelters, domestic
definition, but who: individuals and families and persons at- violence transitional housing programs,
(i) Are defined as homeless under risk of homelessness. and other programs.
section 387 of the Runaway and Metropolitan city means a city that
Homeless Youth Act (42 U.S.C. 5732a), was classified as a metropolitan city § 576.3 Allocation of funding.
section 637 of the Head Start Act (42 under 42 U.S.C. 5302(a) for the fiscal (a) Territories. HUD will set aside for
U.S.C. 9832), section 41403 of the year immediately preceding the fiscal allocation to the territories up to 0.2
Violence Against Women Act of 1994 year for which ESG funds are made percent, but not less than 0.1 percent, of
(42 U.S.C. 14043e–2), section 330(h) of available. This term includes the the total amount of each appropriation
the Public Health Service Act (42 U.S.C. District of Columbia. under this part in any fiscal year. HUD
254b(h)), section 3 of the Food and Private nonprofit organization means will allocate this set-aside amount to
Nutrition Act of 2008 (7 U.S.C. 2012), a private nonprofit organization that is each territory based on its proportionate
section 17(b) of the Child Nutrition Act a secular or religious organization share of the total population of all
of 1966 (42 U.S.C. 1786(b)) or section described in section 501(c) of the territories and its rate of compliance
725 of the McKinney-Vento Homeless Internal Revenue Code of 1986 and with the most recent expenditure
pmangrum on DSK3VPTVN1PROD with RULES2
Assistance Act (42 U.S.C. 11434a); which is exempt from taxation under deadline under § 576.203.
(ii) Have not had a lease, ownership subtitle A of the Code, has an (b) States, metropolitan cities, and
interest, or occupancy agreement in accounting system and a voluntary urban counties. HUD will allocate the
permanent housing at any time during board, and practices nondiscrimination amounts that remain after the set-aside
the 60 days immediately preceding the in the provision of assistance. A private to territories under paragraph (a) of this
date of application for homeless nonprofit organization does not include section to States, metropolitan cities,
assistance; a governmental organization, such as a and urban counties, as follows:
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75976 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
(1) HUD will provide that the § 576.101 Street outreach component. conditions and are provided by licensed
percentage of the total amount available (a) Eligible costs. Subject to the medical professionals operating in
for allocation to each State, expenditure limit in § 576.100(b), ESG community-based settings, including
metropolitan city, or urban county is funds may be used for costs of providing streets, parks, and other places where
equal to the percentage of the total essential services necessary to reach out unsheltered homeless people are living.
amount available under section 106 of to unsheltered homeless people; (ii) ESG funds may be used only for
the Housing and Community connect them with emergency shelter, these services to the extent that other
Development Act of 1974 for the prior housing, or critical services; and appropriate health services are
fiscal year that was allocated to that provide urgent, nonfacility-based care to inaccessible or unavailable within the
State, metropolitan city, or urban unsheltered homeless people who are area.
county. unwilling or unable to access emergency (iii) Eligible treatment consists of
(2) Except as otherwise provided by shelter, housing, or an appropriate assessing a program participant’s health
law, if the amount a metropolitan city health facility. For the purposes of this problems and developing a treatment
or urban county would be allocated section, the term ‘‘unsheltered homeless plan; assisting program participants to
under paragraph (b)(1) is less than 0.05 people’’ means individuals and families understand their health needs;
percent of the total fiscal year who qualify as homeless under providing directly or assisting program
appropriation for ESG, that amount will paragraph (1)(i) of the ‘‘homeless’’ participants to obtain appropriate
be added to the allocation for the State definition under § 576.2. The eligible emergency medical treatment; and
in which the city or county is located. costs and requirements for essential providing medication and follow-up
services consist of: services.
(c) Notification of allocation amount. (1) Engagement. The costs of activities (4) Emergency mental health services.
HUD will notify each State, to locate, identify, and build (i) Eligible costs are the direct outpatient
metropolitan city, urban county, and relationships with unsheltered homeless treatment by licensed professionals of
territory that is eligible to receive an people and engage them for the purpose mental health conditions operating in
allocation under this section of the of providing immediate support, community-based settings, including
amount of its allocation. intervention, and connections with streets, parks, and other places where
homeless assistance programs and/or unsheltered people are living.
Subpart B—Program Components and (ii) ESG funds may be used only for
mainstream social services and housing
Eligible Activities programs. These activities consist of these services to the extent that other
§ 576.100 General provisions and making an initial assessment of needs appropriate mental health services are
expenditure limits. and eligibility; providing crisis inaccessible or unavailable within the
counseling; addressing urgent physical community.
(a) ESG funds may be used for five (iii) Mental health services are the
needs, such as providing meals,
program components: street outreach, application of therapeutic processes to
blankets, clothes, or toiletries; and
emergency shelter, homelessness personal, family, situational, or
actively connecting and providing
prevention, rapid re-housing assistance, occupational problems in order to bring
information and referrals to programs
and HMIS; as well as administrative about positive resolution of the problem
targeted to homeless people and
activities. The five program components mainstream social services and housing or improved individual or family
and the eligible activities that may be programs, including emergency shelter, functioning or circumstances.
funded under each are set forth in transitional housing, community-based (iv) Eligible treatment consists of
§ 576.101 through § 576.107. Eligible services, permanent supportive housing, crisis interventions, the prescription of
administrative activities are set forth in and rapid re-housing programs. Eligible psychotropic medications, explanation
§ 576.108. costs include the cell phone costs of about the use and management of
(b) The total amount of the recipient’s outreach workers during the medications, and combinations of
fiscal year grant that may be used for performance of these activities. therapeutic approaches to address
street outreach and emergency shelter (2) Case management. The cost of multiple problems.
activities cannot exceed the greater of: assessing housing and service needs, (5) Transportation. The transportation
(1) 60 percent of the recipient’s fiscal arranging, coordinating, and monitoring costs of travel by outreach workers,
year grant; or the delivery of individualized services social workers, medical professionals, or
(2) The amount of Fiscal Year 2010 to meet the needs of the program other service providers are eligible,
grant funds committed for homeless participant. Eligible services and provided that this travel takes place
assistance activities. activities are as follows: using the during the provision of services eligible
centralized or coordinated assessment under this section. The costs of
(c) The total amount of ESG funds that system as required under § 576.400(d); transporting unsheltered people to
may be used for administrative activities conducting the initial evaluation emergency shelters or other service
cannot exceed 7.5 percent of the required under § 576.401(a), including facilities are also eligible. These costs
recipient’s fiscal year grant. verifying and documenting eligibility; include the following:
(d) Subject to the cost principles in counseling; developing, securing and (i) The cost of a program participant’s
OMB Circulars A–87 (2 CFR 225) and coordinating services; obtaining Federal, travel on public transportation;
A–122 (2 CFR 230) and other State, and local benefits; monitoring and (ii) If service workers use their own
requirements in this part, employee evaluating program participant progress; vehicles, mileage allowance for service
compensation and other overhead costs providing information and referrals to workers to visit program participants;
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directly related to carrying out street other providers; and developing an (iii) The cost of purchasing or leasing
outreach, emergency shelter, individualized housing and service a vehicle for the recipient or
homelessness prevention, rapid re- plan, including planning a path to subrecipient in which staff transports
housing, and HMIS are eligible costs of permanent housing stability. program participants and/or staff
those program components. These costs (3) Emergency health services. (i) serving program participants, and the
are not subject to the expenditure limit Eligible costs are for the direct cost of gas, insurance, taxes and
in paragraph (c) of this section. outpatient treatment of medical maintenance for the vehicle; and
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75977
(iv) The travel costs of recipient or of services for homeless people. substance abuse prevention, literacy,
subrecipient staff to accompany or assist Reasonable steps may include steps to English as a Second Language, and
program participants to use public increase revenue generation, steps to General Educational Development
transportation. maximize cost savings, or steps to (GED). Component services or activities
(6) Services for special populations. reduce expenditures in areas other than are screening, assessment and testing;
ESG funds may be used to provide services for homeless people. individual or group instruction;
services for homeless youth, victim tutoring; provision of books, supplies
services, and services for people living § 576.102 Emergency shelter component. and instructional material; counseling;
with HIV/AIDS, so long as the costs of (a) General. Subject to the and referral to community resources.
providing these services are eligible expenditure limit in § 576.100(b), ESG (iv) Employment assistance and job
under paragraphs (a)(1) through (a)(5) of funds may be used for costs of providing training. The costs of employment
this section. The term victim services essential services to homeless families assistance and job training programs are
means services that assist program and individuals in emergency shelters, eligible, including classroom, online,
participants who are victims of renovating buildings to be used as and/or computer instruction; on-the-job
domestic violence, dating violence, emergency shelter for homeless families instruction; and services that assist
sexual assault, or stalking, including and individuals, and operating individuals in securing employment,
services offered by rape crisis centers emergency shelters. acquiring learning skills, and/or
and domestic violence shelters, and (1) Essential services. ESG funds may increasing earning potential. The cost of
other organizations with a documented be used to provide essential services to providing reasonable stipends to
history of effective work concerning individuals and families who are in an program participants in employment
domestic violence, dating violence, emergency shelter, as follows: assistance and job training programs is
sexual assault, or stalking. (i) Case management. The cost of an eligible cost. Learning skills include
(b) Minimum period of use. The assessing, arranging, coordinating, and those skills that can be used to secure
recipient or subrecipient must provide monitoring the delivery of and retain a job, including the
services to homeless individuals and individualized services to meet the acquisition of vocational licenses and/or
families for at least the period during needs of the program participant is certificates. Services that assist
which ESG funds are provided. eligible. Component services and individuals in securing employment
(c) Maintenance of effort. (1) If the activities consist of: consist of employment screening,
recipient or subrecipient is a unit of (A) Using the centralized or assessment, or testing; structured job
general purpose local government, its coordinated assessment system as skills and job-seeking skills; special
ESG funds cannot be used to replace required under § 576.400(d); training and tutoring, including literacy
funds the local government provided for (B) Conducting the initial evaluation training and prevocational training;
street outreach and emergency shelter required under § 576.401(a), including books and instructional material;
services during the immediately verifying and documenting eligibility; counseling or job coaching; and referral
preceding 12-month period, unless HUD (C) Counseling; to community resources.
determines that the unit of general (D) Developing, securing, and (v) Outpatient health services. Eligible
purpose local government is in a severe coordinating services and obtaining costs are for the direct outpatient
financial deficit. Federal, State, and local benefits; treatment of medical conditions and are
(2) Upon the recipient’s request, HUD (E) Monitoring and evaluating provided by licensed medical
will determine whether the unit of program participant progress; professionals. Emergency Solutions
general purpose local government is in (F) Providing information and Grant (ESG) funds may be used only for
a severe financial deficit, based on the referrals to other providers; these services to the extent that other
recipient’s demonstration of each of the (G) Providing ongoing risk assessment appropriate health services are
following: and safety planning with victims of unavailable within the community.
(i) The average poverty rate in the unit domestic violence, dating violence, Eligible treatment consists of assessing a
of general purpose local government’s sexual assault, and stalking; and program participant’s health problems
jurisdiction was equal to or greater than (H) Developing an individualized and developing a treatment plan;
125 percent of the average national housing and service plan, including assisting program participants to
poverty rate, during the calendar year planning a path to permanent housing understand their health needs;
for which the most recent data are stability. providing directly or assisting program
available, as determined according to (ii) Child care. The costs of child care participants to obtain appropriate
information from the U.S. Census for program participants, including medical treatment, preventive medical
Bureau. providing meals and snacks, and care, and health maintenance services,
(ii) The average per-capita income in comprehensive and coordinated sets of including emergency medical services;
the unit of general purpose local appropriate developmental activities, providing medication and follow-up
government’s jurisdiction was less than are eligible. The children must be under services; and providing preventive and
75 percent of the average national per- the age of 13, unless they are disabled. noncosmetic dental care.
capita income, during the calendar year Disabled children must be under the age (vi) Legal services. (A) Eligible costs
for which the most recent data are of 18. The child-care center must be are the hourly fees for legal advice and
available, as determined according to licensed by the jurisdiction in which it representation by attorneys licensed and
information from the Census Bureau. operates in order for its costs to be in good standing with the bar
(iii) The unit of general purpose local eligible. association of the State in which the
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government has a current annual budget (iii) Education services. When services are provided, and by person(s)
deficit that requires a reduction in necessary for the program participant to under the supervision of the licensed
funding for services for homeless obtain and maintain housing, the costs attorney, regarding matters that interfere
people. of improving knowledge and basic with the program participant’s ability to
(iv) The unit of general purpose local educational skills are eligible. Services obtain and retain housing.
government has taken all reasonable include instruction or training in (B) Emergency Solutions Grant (ESG)
steps to prevent a reduction in funding consumer education, health education, funds may be used only for these
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75978 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
services to the extent that other relationships, parent-child problems, or history of effective work concerning
appropriate legal services are symptom management. domestic violence, dating violence,
unavailable or inaccessible within the (D) Eligible treatment consists of crisis sexual assault, or stalking.
community. interventions; individual, family, or (2) Renovation. Eligible costs include
(C) Eligible subject matters are child group therapy sessions; the prescription labor, materials, tools, and other costs
support, guardianship, paternity, of psychotropic medications or for renovation (including major
emancipation, and legal separation, explanations about the use and rehabilitation of an emergency shelter or
orders of protection and other civil management of medications; and conversion of a building into an
remedies for victims of domestic combinations of therapeutic approaches emergency shelter). The emergency
violence, dating violence, sexual to address multiple problems. shelter must be owned by a government
assault, and stalking, appeal of veterans (ix) Substance abuse treatment entity or private nonprofit organization.
and public benefit claim denials, and services. (A) Eligible substance abuse (3) Shelter operations. Eligible costs
the resolution of outstanding criminal treatment services are designed to are the costs of maintenance (including
warrants. prevent, reduce, eliminate, or deter minor or routine repairs), rent, security,
(D) Component services or activities relapse of substance abuse or addictive fuel, equipment, insurance, utilities,
may include client intake, preparation behaviors and are provided by licensed food, furnishings, and supplies
of cases for trial, provision of legal or certified professionals. necessary for the operation of the
advice, representation at hearings, and (B) ESG funds may only be used for emergency shelter. Where no
counseling. these services to the extent that other appropriate emergency shelter is
(E) Fees based on the actual service appropriate substance abuse treatment available for a homeless family or
performed (i.e., fee for service) are also services are unavailable or inaccessible individual, eligible costs may also
eligible, but only if the cost would be within the community. include a hotel or motel voucher for that
less than the cost of hourly fees. Filing (C) Eligible treatment consists of family or individual.
fees and other necessary court costs are client intake and assessment, and (4) Assistance required under the
also eligible. If the subrecipient is a outpatient treatment for up to 30 days. Uniform Relocation Assistance and Real
legal services provider and performs the Group and individual counseling and Property Acquisition Policies Act of
services itself, the eligible costs are the drug testing are eligible costs. Inpatient 1970 (URA). Eligible costs are the costs
subrecipient’s employees’ salaries and detoxification and other inpatient drug of providing URA assistance under
other costs necessary to perform the or alcohol treatment are not eligible § 576.408, including relocation
services. costs. payments and other assistance to
(F) Legal services for immigration and (x) Transportation. Eligible costs persons displaced by a project assisted
citizenship matters and issues relating consist of the transportation costs of a with ESG funds. Persons that receive
to mortgages are ineligible costs. program participant’s travel to and from URA assistance are not considered
Retainer fee arrangements and medical care, employment, child care, ‘‘program participants’’ for the purposes
contingency fee arrangements are or other eligible essential services of this part, and relocation payments
ineligible costs. facilities. These costs include the and other URA assistance are not
(vii) Life skills training. The costs of following: considered ‘‘rental assistance’’ or
teaching critical life management skills (A) The cost of a program ‘‘housing relocation and stabilization
that may never have been learned or participant’s travel on public services’’ for the purposes of this part.
have been lost during the course of transportation; (b) Prohibition against involuntary
physical or mental illness, domestic (B) If service workers use their own family separation. The age, of a child
violence, substance use, and vehicles, mileage allowance for service under age 18 must not be used as a basis
homelessness are eligible costs. These workers to visit program participants; for denying any family’s admission to
services must be necessary to assist the (C) The cost of purchasing or leasing an emergency shelter that uses
program participant to function a vehicle for the recipient or Emergency Solutions Grant (ESG)
independently in the community. subrecipient in which staff transports funding or services and provides shelter
Component life skills training are program participants and/or staff to families with children under age 18.
budgeting resources, managing money, serving program participants, and the (c) Minimum period of use. (1)
managing a household, resolving cost of gas, insurance, taxes, and Renovated buildings. Each building
conflict, shopping for food and needed maintenance for the vehicle; and renovated with ESG funds must be
items, improving nutrition, using public (D) The travel costs of recipient or maintained as a shelter for homeless
transportation, and parenting. subrecipient staff to accompany or assist individuals and families for not less
(viii) Mental health services. (A) program participants to use public than a period of 3 or 10 years,
Eligible costs are the direct outpatient transportation. depending on the type of renovation
treatment by licensed professionals of (xi) Services for special populations. and the value of the building. The
mental health conditions. ESG funds may be used to provide ‘‘value of the building’’ is the reasonable
(B) ESG funds may only be used for services for homeless youth, victim monetary value assigned to the building,
these services to the extent that other services, and services for people living such as the value assigned by an
appropriate mental health services are with HIV/AIDS, so long as the costs of independent real estate appraiser. The
unavailable or inaccessible within the providing these services are eligible minimum use period must begin on the
community. under paragraphs (a)(1)(i) through date the building is first occupied by a
(C) Mental health services are the (a)(1)(x) of this section. The term victim homeless individual or family after the
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application of therapeutic processes to services means services that assist completed renovation. A minimum
personal, family, situational, or program participants who are victims of period of use of 10 years, required for
occupational problems in order to bring domestic violence, dating violence, major rehabilitation and conversion,
about positive resolution of the problem sexual assault, or stalking, including must be enforced by a recorded deed or
or improved individual or family services offered by rape crisis centers use restriction.
functioning or circumstances. Problem and domestic violence shelters, and (i) Major rehabilitation. If the
areas may include family and marital other organizations with a documented rehabilitation cost of an emergency
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75979
shelter exceeds 75 percent of the value prevention must be provided in (5) Utility payments. ESG funds may
of the building before rehabilitation, the accordance with the housing relocation pay for up to 24 months of utility
minimum period of use is 10 years. and stabilization services requirements payments per program participant, per
(ii) Conversion. If the cost to convert in § 576.105, the short-term and service, including up to 6 months of
a building into an emergency shelter medium-term rental assistance utility payments in arrears, per service.
exceeds 75 percent of the value of the requirements in § 576.106, and the A partial payment of a utility bill counts
building after conversion, the minimum written standards and procedures as one month. This assistance may only
period of use is 10 years. established under § 576.400. be provided if the program participant
(iii) Renovation other than major or a member of the same household has
rehabilitation or conversion. In all other § 576.104 Rapid re-housing assistance an account in his or her name with a
cases where ESG funds are used for component.
utility company or proof of
renovation, the minimum period of use ESG funds may be used to provide responsibility to make utility payments.
is 3 years. housing relocation and stabilization Eligible utility services are gas, electric,
(2) Essential services and shelter services and short- and/or medium-term water, and sewage. No program
operations. Where the recipient or rental assistance as necessary to help a participant shall receive more than
subrecipient uses ESG funds solely for homeless individual or family move as 24 months of utility assistance within
essential services or shelter operations, quickly as possible into permanent any 3-year period.
the recipient or subrecipient must housing and achieve stability in that (6) Moving costs. ESG funds may pay
provide services or shelter to homeless housing. This assistance, referred to as for moving costs, such as truck rental or
individuals and families at least for the rapid re-housing assistance, may be hiring a moving company. This
period during which the ESG funds are provided to program participants who assistance may include payment of
provided. The recipient or subrecipient meet the criteria under paragraph (1) of temporary storage fees for up to 3
does not need to limit these services or the ‘‘homeless’’ definition in § 576.2 or months, provided that the fees are
shelter to a particular site or structure, who meet the criteria under paragraph accrued after the date the program
so long as the site or structure serves the (4) of the ‘‘homeless’’ definition and live participant begins receiving assistance
same type of persons originally served in an emergency shelter or other place under paragraph (b) of this section and
with the assistance (e.g., families with described in paragraph (1) of the before the program participant moves
children, unaccompanied youth, ‘‘homeless’’ definition. The rapid re- into permanent housing. Payment of
disabled individuals, or victims of housing assistance must be provided in temporary storage fees in arrears is not
domestic violence) or serves homeless accordance with the housing relocation eligible.
persons in the same area where the and stabilization services requirements (b) Services costs. Subject to the
recipient or subrecipient originally in § 576.105, the short- and medium- general restrictions under § 576.103 and
provided the services or shelter. term rental assistance requirements in § 576.104, ESG funds may be used to
(d) Maintenance of effort. The § 576.106, and the written standards and pay the costs of providing the following
maintenance of effort requirements procedures established under § 576.400. services:
under § 576.101(c), which apply to the (1) Housing search and placement.
use of ESG funds for essential services § 576.105 Housing relocation and Services or activities necessary to assist
related to street outreach, also apply for stabilization services.
program participants in locating,
the use of such funds for essential (a) Financial assistance costs. Subject obtaining, and retaining suitable
services related to emergency shelter. to the general conditions under permanent housing, include the
§ 576.103 and § 576.104, ESG funds may following:
§ 576.103 Homelessness prevention
component.
be used to pay housing owners, utility (i) Assessment of housing barriers,
companies, and other third parties for needs, and preferences;
ESG funds may be used to provide (ii) Development of an action plan for
the following costs:
housing relocation and stabilization locating housing;
services and short- and/or medium-term (1) Rental application fees. ESG funds
may pay for the rental housing (iii) Housing search;
rental assistance necessary to prevent an (iv) Outreach to and negotiation with
individual or family from moving into application fee that is charged by the
owner to all applicants. owners;
an emergency shelter or another place (v) Assistance with submitting rental
described in paragraph (1) of the (2) Security deposits. ESG funds may
applications and understanding leases;
‘‘homeless’’ definition in § 576.2. This pay for a security deposit that is equal (vi) Assessment of housing for
assistance, referred to as homelessness to no more than 2 months’ rent. compliance with Emergency Solutions
prevention, may be provided to (3) Last month’s rent. If necessary to Grant (ESG) requirements for
individuals and families who meet the obtain housing for a program habitability, lead-based paint, and rent
criteria under the ‘‘at risk of participant, the last month’s rent may be reasonableness;
homelessness’’ definition, or who meet paid from ESG funds to the owner of (vii) Assistance with obtaining
the criteria in paragraph (2), (3), or (4) that housing at the time the owner is utilities and making moving
of the ‘‘homeless’’ definition in § 576.2 paid the security deposit and the first arrangements; and
and have an annual income below 30 month’s rent. This assistance must not (viii) Tenant counseling.
percent of median family income for the exceed one month’s rent and must be (2) Housing stability case
area, as determined by HUD. The costs included in calculating the program management. ESG funds may be used to
of homelessness prevention are only participant’s total rental assistance, pay cost of assessing, arranging,
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eligible to the extent that the assistance which cannot exceed 24 months during coordinating, and monitoring the
is necessary to help the program any 3-year period. delivery of individualized services to
participant regain stability in the (4) Utility deposits. ESG funds may facilitate housing stability for a program
program participant’s current pay for a standard utility deposit participant who resides in permanent
permanent housing or move into other required by the utility company for all housing or to assist a program
permanent housing and achieve stability customers for the utilities listed in participant in overcoming immediate
in that housing. Homelessness paragraph (5) of this section. barriers to obtaining housing. This
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75980 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
assistance cannot exceed 30 days during set a maximum period for which a or operating assistance, through other
the period the program participant is program participant may receive any of public sources. Rental assistance may
seeking permanent housing and cannot the types of assistance or services under not be provided to a program participant
exceed 24 months during the period the this section. However, except for who has been provided with
program participant is living in housing stability case management, the replacement housing payments under
permanent housing. Component total period for which any program the URA during the period of time
services and activities consist of: participant may receive the services covered by the URA payments.
(A) Using the centralized or under paragraph (b) of this section must (d) Rent restrictions. (1) Rental
coordinated assessment system as not exceed 24 months during any 3-year assistance cannot be provided unless
required under § 576.400(d), to evaluate period. The limits on the assistance the rent does not exceed the Fair Market
individuals and families applying for or under this section apply to the total Rent established by HUD, as provided
receiving homelessness prevention or assistance an individual receives, either under 24 CFR part 888, and complies
rapid re-housing assistance; as an individual or as part of a family. with HUD’s standard of rent
(B) Conducting the initial evaluation (d) Use with other subsidies. Financial reasonableness, as established under 24
required under § 576.401(a), including assistance under paragraph (a) of this CFR 982.507.
verifying and documenting eligibility, section cannot be provided to a program (2) For purposes of calculating rent
for individuals and families applying for participant who is receiving the same under this section, the rent shall equal
homelessness prevention or rapid re- type of assistance through other public the sum of the total monthly rent for the
housing assistance; sources or to a program participant who unit, any fees required for occupancy
(C) Counseling; has been provided with replacement under the lease (other than late fees and
(D) Developing, securing, and housing payments under the URA, pet fees) and, if the tenant pays
coordinating services and obtaining during the period of time covered by the separately for utilities, the monthly
Federal, State, and local benefits; URA payments. allowance for utilities (excluding
(E) Monitoring and evaluating telephone) established by the public
program participant progress; § 576.106 Short-term and medium-term housing authority for the area in which
(F) Providing information and rental assistance. the housing is located.
referrals to other providers; (a) General provisions. Subject to the (e) Rental assistance agreement. The
(G) Developing an individualized general conditions under § 576.103 and recipient or subrecipient may make
housing and service plan, including § 576.104, the recipient or subrecipient rental assistance payments only to an
planning a path to permanent housing may provide a program participant with owner with whom the recipient or
stability; and up to 24 months of rental assistance subrecipient has entered into a rental
(H) Conducting re-evaluations during any 3-year period. This assistance agreement. The rental
required under § 576.401(b). assistance may be short-term rental assistance agreement must set forth the
(3) Mediation. ESG funds may pay for assistance, medium-term rental terms under which rental assistance will
mediation between the program assistance, payment of rental arrears, or be provided, including the requirements
participant and the owner or person(s) any combination of this assistance. that apply under this section. The rental
with whom the program participant is (1) Short-term rental assistance is assistance agreement must provide that,
living, provided that the mediation is assistance for up to 3 months of rent. during the term of the agreement, the
necessary to prevent the program (2) Medium-term rental assistance is owner must give the recipient or
participant from losing permanent assistance for more than 3 months but subrecipient a copy of any notice to the
housing in which the program not more than 24 months of rent. program participant to vacate the
participant currently resides. (3) Payment of rental arrears consists housing unit, or any complaint used
(4) Legal services. ESG funds may pay of a one-time payment for up to 6 under state or local law to commence an
for legal services, as set forth in months of rent in arrears, including any eviction action against the program
§ 576.102(a)(1)(vi), except that the late fees on those arrears. participant.
eligible subject matters also include (4) Rental assistance may be tenant- (f) Late payments. The recipient or
landlord/tenant matters, and the based or project-based, as set forth in subrecipient must make timely
services must be necessary to resolve a paragraphs (h) and (i) of this section. payments to each owner in accordance
legal problem that prohibits the program (b) Discretion to set caps and with the rental assistance agreement.
participant from obtaining permanent conditions. Subject to the requirements The rental assistance agreement must
housing or will likely result in the of this section, the recipient may set a contain the same payment due date,
program participant losing the maximum amount or percentage of grace period, and late payment penalty
permanent housing in which the rental assistance that a program requirements as the program
program participant currently resides. participant may receive, a maximum participant’s lease. The recipient or
(5) Credit repair. ESG funds may pay number of months that a program subrecipient is solely responsible for
for credit counseling and other services participant may receive rental paying late payment penalties that it
necessary to assist program participants assistance, or a maximum number of incurs with non-ESG funds.
with critical skills related to household times that a program participant may (g) Lease. Each program participant
budgeting, managing money, accessing a receive rental assistance. The recipient receiving rental assistance must have a
free personal credit report, and may also require program participants to legally binding, written lease for the
resolving personal credit problems. This share in the costs of rent. rental unit, unless the assistance is
assistance does not include the payment (c) Use with other subsidies. Except solely for rental arrears. The lease must
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or modification of a debt. for a one-time payment of rental arrears be between the owner and the program
(c) Maximum amounts and periods of on the tenant’s portion of the rental participant. Where the assistance is
assistance. The recipient may set a payment, rental assistance cannot be solely for rental arrears, an oral
maximum dollar amount that a program provided to a program participant who agreement may be accepted in place of
participant may receive for each type of is receiving tenant-based rental a written lease, if the agreement gives
financial assistance under paragraph (a) assistance, or living in a housing unit the program participant an enforceable
of this section. The recipient may also receiving project-based rental assistance leasehold interest under state law and
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75981
the agreement and rent owed are participant moves out of an assisted (vi) Paying charges for electricity, gas,
sufficiently documented by the owner’s unit, the recipient or subrecipient may water, phone service, and high-speed
financial records, rent ledgers, or pay the next month’s rent, i.e., the first data transmission necessary to operate
canceled checks. For program month’s rent for a new program or contribute data to the HMIS;
participants living in housing with participant, as provided in paragraph (vii) Paying salaries for operating
project-based rental assistance under (i)(2) of this section. HMIS, including:
paragraph (i) of this section, the lease (4) The program participant’s lease (A) Completing data entry;
must have an initial term of one year. must not condition the term of (B) Monitoring and reviewing data
(h) Tenant-based rental assistance. occupancy to the provision of rental quality;
(1) A program participant who receives assistance payments. If the program (C) Completing data analysis;
tenant-based rental assistance may participant is determined ineligible or (D) Reporting to the HMIS Lead;
select a housing unit in which to live reaches the maximum number of (F) Training staff on using the HMIS
and may move to another unit or months over which rental assistance can or comparable database; and
building and continue to receive rental be provided, the recipient or (G) Implementing and complying with
assistance, as long as the program subrecipient must suspend or terminate HMIS requirements;
participant continues to meet the the rental assistance payments for the (viii) Paying costs of staff to travel to
program requirements. unit. If the payments are suspended, the and attend HUD-sponsored and HUD-
(2) The recipient may require that all individual or family may remain in the approved training on HMIS and
program participants live within a assisted unit as permitted under the programs authorized by Title IV of the
particular area for the period in which lease, and the recipient or subrecipient McKinney-Vento Homeless Assistance
the rental assistance is provided. may resume payments if the individual Act;
(3) The rental assistance agreement or family again becomes eligible and (ix) Paying staff travel costs to
with the owner must terminate and no needs further rental assistance. If the conduct intake; and
further rental assistance payments payments are terminated, the rental (x) Paying participation fees charged
under that agreement may be made if: assistance may be transferred to another by the HMIS Lead, if the recipient or
(i) The program participant moves out available unit in the same building, subrecipient is not the HMIS Lead. The
of the housing unit for which the provided that the other unit meets all HMIS Lead is the entity designated by
program participant has a lease; ESG requirements. the Continuum of Care to operate the
(ii) The lease terminates and is not (5) The rental assistance agreement area’s HMIS.
renewed; or must have an initial term of one year.
(iii) The program participant becomes (2) If the recipient is the HMIS lead
When a new program participant moves agency, as designated by the Continuum
ineligible to receive ESG rental into an assisted unit, the term of the
assistance. of Care in the most recent fiscal year
rental assistance agreement may be Continuum of Care Homeless Assistance
(i) Project-based rental assistance. If extended to cover the initial term of the
the recipient or subrecipient identifies a Grants Competition, it may also use ESG
program participant’s lease. If the funds to pay the costs of:
permanent housing unit that meets ESG program participant’s lease is renewed,
requirements and becomes available (i) Hosting and maintaining HMIS
the rental assistance agreement may be software or data;
before a program participant is renewed or extended, as needed, up to
identified to lease the unit, the recipient (ii) Backing up, recovering, or
the maximum number of months for repairing HMIS software or data;
or subrecipient may enter into a rental which the program participant remains
assistance agreement with the owner to (iii) Upgrading, customizing, and
eligible. However, under no enhancing the HMIS;
reserve the unit and subsidize its rent in circumstances may the recipient or
accordance with the following (iv) Integrating and warehousing data,
subrecipient commit ESG funds to be including development of a data
requirements: expended beyond the expenditure
(1) The rental assistance agreement warehouse for use in aggregating data
deadline in § 576.203 or commit funds from subrecipients using multiple
may cover one or more permanent
for a future ESG grant before the grant software systems;
housing units in the same building.
is awarded. (v) Administering the system;
Each unit covered by the rental
(j) Changes in household composition. (vi) Reporting to providers, the
assistance agreement (‘‘assisted unit’’)
The limits on the assistance under this Continuum of Care, and HUD; and
may only be occupied by program
section apply to the total assistance an (vii) Conducting training on using the
participants, except as provided under
individual receives, either as an system or a comparable database,
paragraph (i)(4) of this section.
individual or as part of a family. including traveling to the training.
(2) The recipient or subrecipient may
pay up to 100 percent of the first § 576.107 HMIS component. (3) If the subrecipient is a victim
month’s rent, provided that a program (a) Eligible costs. services provider or a legal services
participant signs a lease and moves into (1) The recipient or subrecipient may provider, it may use ESG funds to
the unit before the end of the month for use ESG funds to pay the costs of establish and operate a comparable
which the first month’s rent is paid. The contributing data to the HMIS database that collects client-level data
rent paid before a program participant designated by the Continuum of Care for over time (i.e., longitudinal data) and
moves into the unit must not exceed the the area, including the costs of: generates unduplicated aggregate
rent to be charged under the program (i) Purchasing or leasing computer reports based on the data. Information
participant’s lease and must be included entered into a comparable database
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hardware;
when determining that program (ii) Purchasing software or software must not be entered directly into or
participant’s total rental assistance. licenses; provided to an HMIS.
(3) The recipient or subrecipient may (iii) Purchasing or leasing equipment, (b) General restrictions. Activities
make monthly rental assistance including telephones, fax machines, and funded under this section must comply
payments only for each whole or partial furniture; with HUD’s standards on participation,
month an assisted unit is leased to a (iv) Obtaining technical support; data collection, and reporting under a
program participant. When a program (v) Leasing office space; local HMIS.
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75982 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
§ 576.108 Administrative activities. services, accounting services, and audit consolidated plan in accordance with
(a) Eligible costs. The recipient may services; and the requirements in 24 CFR part 91, and
use up to 7.5 percent of its ESG grant (iv) Other costs for goods and services each territory must submit and obtain
for the payment of administrative costs required for administration of the HUD approval of a consolidated plan in
related to the planning and execution of program, including rental or purchase of accordance with the requirements that
ESG activities. This does not include equipment, insurance, utilities, office apply to local governments under 24
staff and overhead costs directly related supplies, and rental and maintenance CFR part 91. As provided under 24 CFR
to carrying out activities eligible under (but not purchase) of office space. 85.12, HUD may impose special
§ 576.101 through § 576.107, because (2) Training on ESG requirements. conditions or restrictions on a grant, if
those costs are eligible as part of those Costs of providing training on ESG the recipient is determined to be high
activities. Eligible administrative costs requirements and attending HUD- risk.
include: sponsored ESG trainings. (b) Amendments. The recipient must
(1) General management, oversight (3) Consolidated plan. Costs of amend its approved consolidated plan
and coordination. Costs of overall preparing and amending the ESG and in order to make a change in its
program management, coordination, homelessness-related sections of the allocation priorities; make a change in
monitoring, and evaluation. These costs consolidated plan in accordance with its method of distributing funds; carry
include, but are not limited to, ESG requirements and 24 CFR part 91. out an activity not previously described
necessary expenditures for the (4) Environmental review. Costs of in the plan; or change the purpose,
following: carrying out the environmental review scope, location, or beneficiaries of an
(i) Salaries, wages, and related costs of responsibilities under § 576.407. activity. The amendment must be
the recipient’s staff, the staff of (b) Sharing requirement. (1) States. If completed and submitted to HUD in
subrecipients, or other staff engaged in the recipient is a State, the recipient accordance with the requirements under
program administration. In charging must share its funds for administrative 24 CFR 91.505.
costs to this category, the recipient may costs with its subrecipients that are
§ 576.201 Matching requirement.
either include the entire salary, wages, units of general purpose local
government. The amount shared must (a) Required amount of matching
and related costs allocable to the
be reasonable under the circumstances. contributions. (1) Except as provided
program of each person whose primary
The recipient may share its funds for under paragraphs (a)(2) and (a)(3) of this
responsibilities with regard to the
administrative costs with its section, the recipient must make
program involve program
subrecipients that are private nonprofit matching contributions to supplement
administration assignments, or the pro
organizations. the recipient’s ESG program in an
rata share of the salary, wages, and
(2) Territories, metropolitan cities, amount that equals the amount of ESG
related costs of each person whose job
and urban counties. If the recipient is a funds provided by HUD.
includes any program administration (2) If the recipient is a State, the first
assignments. The recipient may use territory, metropolitan city, or urban
county, the recipient may share its $100,000 of the fiscal year grant is not
only one of these methods for each required to be matched. However, the
fiscal year grant. Program funds for administrative costs with its
subrecipients. recipient must transfer the benefit of
administration assignments include the this exception to its subrecipients that
following: § 576.109 Indirect costs. are least capable of providing the
(A) Preparing program budgets and recipient with matching contributions.
schedules, and amendments to those (a) In general. ESG grant funds may be
used to pay indirect costs in accordance (3) This matching requirement does
budgets and schedules; not apply if the recipient is a territory.
(B) Developing systems for assuring with OMB Circular A–87 (2 CFR part
225), or A–122 (2 CFR part 230), as (b) Eligible sources of matching
compliance with program requirements; contributions. (1) Subject to the
(C) Developing interagency applicable.
(b) Allocation. Indirect costs may be requirement for States under paragraph
agreements and agreements with (a)(2) of this section, the recipient may
subrecipients and contractors to carry allocated to each eligible activity under
§ 576.101 through § 576.108, so long as require its subrecipients to make
out program activities; matching contributions consistent with
(D) Monitoring program activities for that allocation is consistent with an
indirect cost rate proposal developed in this section to help meet the recipient’s
progress and compliance with program matching requirement.
requirements; accordance with OMB Circular A–87 (2
CFR part 225), or A–122 (2 CFR part (2) Matching contributions may be
(E) Preparing reports and other obtained from any source, including any
230), as applicable.
documents directly related to the Federal source other than the ESG
(c) Expenditure limits. The indirect
program for submission to HUD; program, as well as state, local, and
costs charged to an activity subject to an
(F) Coordinating the resolution of private sources. However, the following
expenditure limit under § 576.100 must
audit and monitoring findings; requirements apply to matching
be added to the direct costs charged for
(G) Evaluating program results against contributions from a Federal source of
that activity when determining the total
stated objectives; and funds:
costs subject to the expenditure limit.
(H) Managing or supervising persons (i) The recipient must ensure the laws
whose primary responsibilities with Subpart C—Award and Use of Funds governing any funds to be used as
regard to the program include such matching contributions do not prohibit
assignments as those described in § 576.200 Submission requirements and those funds from being used to match
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paragraph (a)(1)(i)(A) through (G) of this grant approval. Emergency Solutions Grant (ESG) funds.
section. (a) Application submission and (ii) If ESG funds are used to satisfy the
(ii) Travel costs incurred for approval. In addition to meeting the matching requirements of another
monitoring of subrecipients; application submission requirements in Federal program, then funding from that
(iii) Administrative services 24 CFR part 5, subpart K, each State, program may not be used to satisfy the
performed under third-party contracts urban county, or metropolitan city must matching requirements under this
or agreements, including general legal submit and obtain HUD approval of a section.
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75983
(c) Recognition of matching established, along with its regular general purpose local government, the
contributions. (1) In order to meet the indirect cost rate, a special rate for subrecipient must obligate all of those
matching requirement, the matching allocating to individual projects or funds by a subgrant agreement with, or
contributions must meet all programs the value of those a letter of award requiring payment to,
requirements that apply to the ESG contributions. a private nonprofit organization; a
funds provided by HUD, except for the (f) Costs paid by program income. procurement contract; or the written
expenditure limits in § 576.100. Costs paid by program income shall designation of a department within the
(2) The matching contributions must count toward meeting the recipient’s government of the subrecipient to
be provided after the date that HUD matching requirements, provided the directly carry out an eligible activity.
signs the grant agreement. costs are eligible ESG costs that (2) Funds allocated to metropolitan
(3) To count toward the required supplement the recipient’s ESG cities, urban counties, and territories.
match for the recipient’s fiscal year program. Within 180 days after the date that HUD
grant, cash contributions must be signs the grant agreement (or a grant
expended within the expenditure § 576.202 Means of carrying out grant amendment for reallocation of funds)
deadline in § 576.203, and noncash activities.
with the metropolitan city, urban
contributions must be made within the (a) States. If the recipient is a State, county, or territory, the recipient must
expenditure deadline in § 576.203. the recipient may use an amount obligate all the grant amount, except the
(4) Contributions used to match a consistent with the restrictions in amount for its administrative costs. This
previous ESG grant may not be used to § 576.100 and § 576.108 to carry out requirement is met by an agreement
match a subsequent ESG grant. administrative activities through its with, or a letter of award requiring
(5) Contributions that have been or employees or procurement contracts. If payment to, a subrecipient; a
will be counted as satisfying a matching the recipient is a State, and has been procurement contract; or a written
requirement of another Federal grant or identified as the HMIS lead by the designation of a department within the
award may not count as satisfying the Continuum of Care, the State may use government of the recipient to directly
matching requirement of this section. funds to carry out HMIS activities set carry out an eligible activity. If the
(d) Eligible types of matching forth in § 576.107(a)(2). The recipient recipient is an urban county, this
contributions. The matching must subgrant the remaining funds in its requirement may also be met with an
requirement may be met by one or both fiscal year grant to: agreement with, or letter of award
of the following: (1) Units of general purpose local requiring payment to, a member
(1) Cash contributions. Cash government in the State, which may government, which has designated a
expended for allowable costs, as defined include metropolitan cities and urban department to directly carry out an
in OMB Circulars A–87 (2 CFR part 225) counties that receive ESG funds directly eligible activity.
and A–122 (2 CFR part 230), of the from HUD; or (b) Expenditures. The recipient must
recipient or subrecipient. (2) Private nonprofit organizations, draw down and expend funds from each
(2) Noncash contributions. The value provided that for emergency shelter year’s grant not less than once during
of any real property, equipment, goods, activities the recipient obtains a each quarter of the recipient’s program
or services contributed to the recipient’s certification of approval from the unit of year. All of the recipient’s grant must be
or subrecipient’s ESG program, general purpose local government for expended for eligible activity costs
provided that if the recipient or the geographic area in which those within 24 months after the date HUD
subrecipient had to pay for them with activities are to be carried out. signs the grant agreement with the
grant funds, the costs would have been (b) Recipients other than States; recipient. For the purposes of this
allowable. Noncash contributions may subrecipients. The recipient, if it is not paragraph, expenditure means either an
also include the purchase value of any a State, and all subrecipients may carry actual cash disbursement for a direct
donated building. out all eligible activities through their charge for a good or service or an
(e) Calculating the amount of noncash employees, procurement contracts, or indirect cost or the accrual of a direct
contributions. (1) To determine the subgrants to private nonprofit charge for a good or service or an
value of any donated material or organizations. If the recipient is an indirect cost.
building, or of any lease, the recipient urban county, it may carry out activities (c) Payments to subrecipients. The
must use a method reasonably through any of its member governments, recipient must pay each subrecipient for
calculated to establish the fair market so long as the county applies to its allowable costs within 30 days after
value. members the same requirements that are receiving the subrecipient’s complete
(2) Services provided by individuals applicable to local government payment request. This requirement also
must be valued at rates consistent with subrecipients under this part. applies to each subrecipient that is a
those ordinarily paid for similar work in
§ 576.203 Obligation, expenditure, and unit of general purpose local
the recipient’s or subrecipient’s
payment requirements. government.
organization. If the recipient or
subrecipient does not have employees (a) Obligation of funds. (1) Funds Subpart D—Reallocations
performing similar work, the rates must allocated to States. (i) Within 60 days
be consistent with those ordinarily paid from the date that HUD signs the grant § 576.300 In general.
by other employers for similar work in agreement with the State (or grant (1) Funds not awarded by HUD due to
the same labor market. amendment for reallocated funds), the failure by the recipient to submit and
(3) Some noncash contributions are recipient must obligate the entire grant, obtain HUD approval of a consolidated
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real property, equipment, goods, or except the amount for its administrative plan will be reallocated in accordance
services that, if the recipient or costs. This requirement is met by a with §§ 576.301 through 576.303.
subrecipient had to pay for them with subgrant agreement with, or a letter of (2) Recaptured funds will be awarded
grant funds, the payments would have award requiring payment from the grant by formula. In October and April each
been indirect costs. Matching credit for to, a subrecipient. year, HUD will determine if the amount
these contributions must be given only (ii) Within 120 days after the date that of recaptured funds is at least 30 percent
if the recipient or subrecipient has the State obligates its funds to a unit of of the most recent fiscal year
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75984 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
appropriation. If so, HUD will amend all (1) A substantial amendment to its the administration and operation of the
existing grants and reallocate the funds. approved consolidated plan in HMIS.
If the amount is less than 30 percent of accordance with 24 CFR part 91; or (b) Coordination with other targeted
the most recent fiscal year (2) If the eligible recipient does not homeless services. The recipient and its
appropriation, the funds will be have an approved consolidated plan, an subrecipients must coordinate and
reallocated in conjunction with the next abbreviated consolidated plan that integrate, to the maximum extent
fiscal year’s allocation of funding. meets the requirements in the Federal practicable, ESG-funded activities with
Register notice or notification letter other programs targeted to homeless
§ 576.301 Metropolitan cities and urban from HUD. people in the area covered by the
counties.
(d) Restrictions that apply to Continuum of Care or area over which
Grant funds returned by a reallocated amounts. The same the services are coordinated to provide
metropolitan city or urban county will requirements that apply to grant funds a strategic, community-wide system to
be reallocated as follows: allocated under § 576.3 apply to grant prevent and end homelessness for that
(a) Eligible recipient. HUD will make funds reallocated under this section. area. These programs include:
the funds available to the State in which (1) Shelter Plus Care Program (24 CFR
the city or county is located. § 576.303 Territories. part 582);
(b) Notification of availability. HUD (a) General. Grant funds returned by (2) Supportive Housing Program (24
will promptly notify the State of the a territory will be reallocated to other CFR part 583);
availability of the amounts to be territories, then if funds remain, to (3) Section 8 Moderate Rehabilitation
reallocated. States. Program for Single Room Occupancy
(c) Application requirement. Within (b) Allocation method. The funds will Program for Homeless Individuals (24
45 days after the date of notification, the be allocated as follows: CFR part 882);
State must submit to HUD a substantial (1) For territories, the funds will be (4) HUD—Veterans Affairs Supportive
amendment to its consolidated plan in allocated among the territories in direct Housing (HUD–VASH) (division K, title
accordance with 24 CFR part 91. proportion with each territory’s share of II, Consolidated Appropriations Act,
(d) Restrictions that apply to the total population of all of the eligible 2008, Pub. L. 110–161 (2007), 73 FR
reallocated amounts. The same territories. If HUD determines that a 25026 (May 6, 2008));
requirements that apply to grant funds territory failed to spend its funds in (5) Education for Homeless Children
allocated under § 576.3 apply to grant accordance with ESG requirements, and Youth Grants for State and Local
funds reallocated under this section, then HUD may exclude the territory Activities (title VII–B of the McKinney-
except that the State must distribute the from the allocation of reallocation Vento Homeless Assistance Act (42
reallocated funds: amounts under this section. U.S.C. 11431 et seq.));
(1) To private nonprofit organizations (2) For States, the funds will be (6) Grants for the Benefit of Homeless
and units of general purpose local allocated to each State in direct Individuals (section 506 of the Public
government in the geographic area in proportion with each State’s share of the Health Services Act (42 U.S.C. 290aa–
which the metropolitan city or urban total amount of funds allocated to States 5));
county is located; under § 576.3. (7) Healthcare for the Homeless (42
(2) If funds remain, to private (c) Notification of availability. HUD CFR part 51c);
nonprofit organizations and units of will notify eligible recipients of the (8) Programs for Runaway and
general purpose local government availability of the fund by a letter or Homeless Youth (Runaway and
located throughout the State. Federal Register notice, which will Homeless Youth Act (42 U.S.C. 5701 et
specify how the awards of funds will be seq.));
§ 576.302 States. (9) Projects for Assistance in
made.
Grant funds returned by a State will (d) Application requirements. Within Transition from Homelessness (part C of
be reallocated as follows: 45 days after the date of notification, the title V of the Public Health Service Act
(a) Eligible recipients. HUD will make eligible recipient must submit to HUD a (42 U.S.C. 290cc–21 et seq.));
the funds available: substantial amendment to its (10) Services in Supportive Housing
(1) To metropolitan cities and urban consolidated plan in accordance with 24 Grants (section 520A of the Public
counties in the State that were not CFR part 91. Health Service Act);
allocated funds under § 576.3 because (e) Restrictions that apply to (11) Emergency Food and Shelter
the amount they would have been reallocated amounts. The same Program (title III of the McKinney-Vento
allocated did not meet the minimum requirements that apply to grant funds Homeless Assistance Act (42 U.S.C.
requirement under § 576.3(b)(2); allocated under § 576.3 apply to grant 11331 et seq.));
(2) If funds remain, to county funds reallocated under this section. (12) Transitional Housing Assistance
governments in the State other than Grants for Victims of Sexual Assault,
urban counties; Subpart E—Program Requirements Domestic Violence, Dating Violence,
(3) Then, if funds remain, to and Stalking Program (section 40299 of
metropolitan cities and urban counties § 576.400 Area-wide systems coordination the Violent Crime Control and Law
in the State that were allocated funds requirements. Enforcement Act (42 U.S.C. 13975));
under § 576.3. (a) Consultation with Continuums of (13) Homeless Veterans Reintegration
(b) Notification of availability. HUD Care. The recipient must consult with Program (section 5(a)(1)) of the
will notify eligible recipients of the each Continuum of Care that serves the Homeless Veterans Comprehensive
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availability of the funds by a recipient’s jurisdiction in determining Assistance Act (38 U.S.C. 2021);
notification letter or Federal Register how to allocate ESG funds each program (14) Domiciliary Care for Homeless
notice, which will specify how the year; developing the performance Veterans Program (38 U.S.C. 2043);
awards of funds will be made. standards for, and evaluating the (15) VA Homeless Providers Grant
(c) Application requirements. Within outcomes of, projects and activities and Per Diem Program (38 CFR part 61);
45 days after the date of notification, the assisted by ESG funds; and developing (16) Health Care for Homeless
eligible recipient must submit to HUD: funding, policies, and procedures for Veterans Program (38 U.S.C. 2031);
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75985
(17) Homeless Veterans Dental territory, the recipient must have activities must be coordinated and
Program (38 U.S.C. 2062); written standards for providing integrated to the maximum extent
(18) Supportive Services for Veteran Emergency Solutions Grant (ESG) practicable);
Families Program (38 CFR part 62); and assistance and must consistently apply (vi) Policies and procedures for
(19) Veteran Justice Outreach those standards for all program determining and prioritizing which
Initiative (38 U.S.C. 2031). participants. The recipient must eligible families and individuals will
(c) System and program coordination describe these standards in its receive homelessness prevention
with mainstream resources. The consolidated plan. assistance and which eligible families
recipient and its subrecipients must (2) If the recipient is a state: and individuals will receive rapid re-
coordinate and integrate, to the (i) The recipient must establish and housing assistance;
maximum extent practicable, ESG- consistently apply, or require that its (vii) Standards for determining what
funded activities with mainstream subrecipients establish and consistently percentage or amount of rent and
housing, health, social services, apply, written standards for providing utilities costs each program participant
employment, education, and youth ESG assistance. If the written standards must pay while receiving homelessness
programs for which families and are established by the subrecipients, the prevention or rapid re-housing
individuals at risk of homelessness and recipient may require these written assistance;
homeless individuals and families may standards to be: (viii) Standards for determining how
be eligible. Examples of these programs (A) Established for each area covered long a particular program participant
include: by a Continuum of Care or area over will be provided with rental assistance
(1) Public housing programs assisted which the services are coordinated and and whether and how the amount of
under section 9 of the U.S. Housing Act followed by each subrecipient providing that assistance will be adjusted over
of 1937 (42 U.S.C. 1437g) (24 CFR parts assistance in that area; or time; and
905, 968, and 990); (B) Established by each subrecipient (ix) Standards for determining the
(2) Housing programs receiving and applied consistently within the type, amount, and duration of housing
tenant-based or project-based assistance subrecipient’s program. stabilization and/or relocation services
under section 8 of the U.S. Housing Act (ii) Written standards developed by to provide to a program participant,
of 1937 (42 U.S.C. 1437f) (respectively the state must be included in the state’s including the limits, if any, on the
24 CFR parts 982 and 983); Consolidated Plan. If the written homelessness prevention or rapid re-
(3) Supportive Housing for Persons standards are developed by its housing assistance that each program
with Disabilities (Section 811) (24 CFR subrecipients, the recipient must participant may receive, such as the
part 891); describe its requirements for the maximum amount of assistance,
(4) HOME Investment Partnerships establishment and implementation of maximum number of months the
Program (24 CFR part 92); these standards in the state’s program participant receive assistance;
(5) Temporary Assistance for Needy Consolidated Plan. or the maximum number of times the
Families (TANF) (45 CFR parts 260– (3) At a minimum these written program participant may receive
265); standards must include: assistance.
(6) Health Center Program (42 CFR (i) Standard policies and procedures (f) Participation in HMIS. The
part 51c); for evaluating individuals’ and families’ recipient must ensure that data on all
(7) State Children’s Health Insurance eligibility for assistance under persons served and all activities assisted
Program (42 CFR part 457): Emergency Solutions Grant (ESG); under ESG are entered into the
(8) Head Start (45 CFR chapter XIII, (ii) Standards for targeting and applicable community-wide HMIS in
subchapter B); providing essential services related to the area in which those persons and
(9) Mental Health and Substance street outreach; activities are located, or a comparable
Abuse Block Grants (45 CFR part 96); (iii) Policies and procedures for database, in accordance with HUD’s
and admission, diversion, referral, and standards on participation, data
(10) Services funded under the discharge by emergency shelters collection, and reporting under a local
Workforce Investment Act (29 U.S.C. assisted under ESG, including standards HMIS. If the subrecipient is a victim
2801 et seq.). regarding length of stay, if any, and service provider or a legal services
(d) Centralized or coordinated safeguards to meet the safety and shelter provider, it may use a comparable
assessment. Once the Continuum of needs of special populations, e.g., database that collects client-level data
Care has developed a centralized victims of domestic violence, dating over time (i.e., longitudinal data) and
assessment system or a coordinated violence, sexual assault, and stalking; generates unduplicated aggregate
assessment system in accordance with and individuals and families who have reports based on the data. Information
requirements to be established by HUD, the highest barriers to housing and are entered into a comparable database
each ESG-funded program or project likely to be homeless the longest; must not be entered directly into or
within the Continuum of Care’s area (iv) Policies and procedures for provided to an HMIS.
must use that assessment system. The assessing, prioritizing, and reassessing
recipient and subrecipient must work individuals’ and families’ needs for § 576.401 Evaluation of program
with the Continuum of Care to ensure essential services related to emergency participant eligibility and needs.
the screening, assessment and referral of shelter; (a) Evaluations. The recipient or its
program participants are consistent with (v) Policies and procedures for subrecipient must conduct an initial
the written standards required by coordination among emergency shelter evaluation to determine the eligibility of
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paragraph (e) of this section. A victim providers, essential services providers, each individual or family’s eligibility for
service provider may choose not to use homelessness prevention, and rapid re- ESG assistance and the amount and
the Continuum of Care’s centralized or housing assistance providers; other types of assistance the individual or
coordinated assessment system. homeless assistance providers; and family needs to regain stability in
(e) Written standards for providing mainstream service and housing permanent housing. These evaluations
ESG assistance. (1) If the recipient is a providers (see § 576.400(b) and (c) for a must be conducted in accordance with
metropolitan city, urban county, or list of programs with which ESG-funded the centralized or coordinated
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75986 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
assessment requirements set forth under (iv) Federal-State Unemployment (1) Written notice to the program
§ 576.400(d) and the written standards Insurance Program (20 CFR parts 601– participant containing a clear statement
established under § 576.400(e). 603, 606, 609, 614–617, 625, 640, 650); of the reasons for termination;
(b) Re-evaluations for homelessness (v) Social Security Disability (2) A review of the decision, in which
prevention and rapid re-housing Insurance (SSDI) (20 CFR part 404); the program participant is given the
assistance. (1) The recipient or (vi) Supplemental Security Income opportunity to present written or oral
subrecipient must re-evaluate the (SSI) (20 CFR part 416); objections before a person other than the
program participant’s eligibility and the person (or a subordinate of that person)
(vii) Child and Adult Care Food
types and amounts of assistance the who made or approved the termination
Program (42 U.S.C. 1766(t) (7 CFR part
program participant needs not less than decision; and
226)); (3) Prompt written notice of the final
once every 3 months for program
participants receiving homelessness (viii) Other assistance available under decision to the program participant.
prevention assistance, and not less than the programs listed in § 576.400(c). (c) Ability to provide further
once annually for program participants (e) Housing stability case assistance. Termination under this
receiving rapid re-housing assistance. At management. (1) While providing section does not bar the recipient or
a minimum, each re-evaluation of homelessness prevention or rapid re- subrecipient from providing further
eligibility must establish that: housing assistance to a program assistance at a later date to the same
(i) The program participant does not participant, the recipient or subrecipient family or individual.
have an annual income that exceeds 30 must:
§ 576.403 Shelter and housing standards.
percent of median family income for the (i) Require the program participant to
area, as determined by HUD; and meet with a case manager not less than (a) Lead-based paint remediation and
(ii) The program participant lacks once per month to assist the program disclosure. The Lead-Based Paint
sufficient resources and support participant in ensuring long-term Poisoning Prevention Act (42 U.S.C.
networks necessary to retain housing housing stability; and 4821–4846), the Residential Lead-Based
without ESG assistance. Paint Hazard Reduction Act of 1992 (42
(ii) Develop a plan to assist the
(2) The recipient or subrecipient may U.S.C. 4851–4856), and implementing
program participant to retain permanent
require each program participant regulations in 24 CFR part 35, subparts
housing after the ESG assistance ends,
receiving homelessness prevention or A, B, H, J, K, M, and R apply to all
taking into account all relevant
rapid re-housing assistance to notify the shelters assisted under ESG program
considerations, such as the program
recipient or subrecipient regarding and all housing occupied by program
participant’s current or expected income
changes in the program participant’s participants.
and expenses; other public or private (b) Minimum standards for emergency
income or other circumstances (e.g., assistance for which the program
changes in household composition) that shelters. Any building for which
participant will be eligible and likely to Emergency Solutions Grant (ESG) funds
affect the program participant’s need for receive; and the relative affordability of
assistance under ESG. When notified of are used for conversion, major
available housing in the area. rehabilitation, or other renovation, must
a relevant change, the recipient or (2) The recipient or subrecipient is
subrecipient must re-evaluate the meet state or local government safety
exempt from the requirement under and sanitation standards, as applicable,
program participant’s eligibility and the paragraph (e)(1)(i) of this section if the
amount and types of assistance the and the following minimum safety,
Violence Against Women Act of 1994 sanitation, and privacy standards. Any
program participant needs. (42 U.S.C. 13701 et seq.) or the Family
(c) Annual income. When emergency shelter that receives
Violence Prevention and Services Act assistance for shelter operations must
determining the annual income of an
(42 U.S.C. 10401 et seq.) prohibits that also meet the following minimum
individual or family, the recipient or
recipient or subrecipient from making safety, sanitation, and privacy
subrecipient must use the standard for
its shelter or housing conditional on the standards. The recipient may also
calculating annual income under 24
participant’s acceptance of services. establish standards that exceed or add to
CFR 5.609.
(d) Connecting program participants § 576.402 Terminating assistance. these minimum standards.
to mainstream and other resources. The (1) Structure and materials. The
(a) In general. If a program participant shelter building must be structurally
recipient and its subrecipients must
violates program requirements, the sound to protect residents from the
assist each program participant, as
recipient or subrecipient may terminate elements and not pose any threat to
needed, to obtain:
(1) Appropriate supportive services, the assistance in accordance with a health and safety of the residents. Any
including assistance in obtaining formal process established by the renovation (including major
permanent housing, medical health recipient or subrecipient that recognizes rehabilitation and conversion) carried
treatment, mental health treatment, the rights of individuals affected. The out with ESG assistance must use
counseling, supervision, and other recipient or subrecipient must exercise Energy Star and WaterSense products
services essential for achieving judgment and examine all extenuating and appliances.
independent living; and circumstances in determining when (2) Access. The shelter must be
(2) Other Federal, State, local, and violations warrant termination so that a accessible in accordance with Section
private assistance available to assist the program participant’s assistance is 504 of the Rehabilitation Act (29 U.S.C.
program participant in obtaining terminated only in the most severe 794) and implementing regulations at 24
cases. CFR part 8; the Fair Housing Act (42
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housing stability, including:
(i) Medicaid (42 CFR chapter IV, (b) Program participants receiving U.S.C. 3601 et seq.) and implementing
subchapter C): rental assistance or housing relocation regulations at 24 CFR part 100; and Title
(ii) Supplemental Nutrition and stabilization services. To terminate II of the Americans with Disabilities Act
Assistance Program (7 CFR parts 271– rental assistance or housing relocation (42 U.S.C. 12131 et seq.) and 28 CFR
283); and stabilization services to a program part 35; where applicable.
(iii) Women, Infants and Children participant, the required formal process, (3) Space and security. Except where
(WIC) (7 CFR part 246); at a minimum, must consist of: the shelter is intended for day use only,
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75987
the shelter must provide each program belongings. Each resident must be subrecipient may, with respect to
participant in the shelter with an provided an acceptable place to sleep. individuals or families occupying
acceptable place to sleep and adequate (3) Interior air quality. Each room or housing owned by the subrecipient, or
space and security for themselves and space must have a natural or mechanical any parent or subsidiary of the
their belongings. means of ventilation. The interior air subrecipient, carry out the initial
(4) Interior air quality. Each room or must be free of pollutants at a level that evaluation required under § 576.401 or
space within the shelter must have a might threaten or harm the health of administer homelessness prevention
natural or mechanical means of residents. assistance under § 576.103.
ventilation. The interior air must be free (4) Water supply. The water supply (b) Individual conflicts of interest. For
of pollutants at a level that might must be free from contamination. the procurement of goods and services,
threaten or harm the health of residents. (5) Sanitary facilities. Residents must the recipient and its subrecipients must
(5) Water supply. The shelter’s water have access to sufficient sanitary comply with the codes of conduct and
supply must be free of contamination. facilities that are in proper operating conflict of interest requirements under
(6) Sanitary facilities. Each program condition, are private, and are adequate 24 CFR 85.36 (for governments) and 24
participant in the shelter must have for personal cleanliness and the CFR 84.42 (for private nonprofit
access to sanitary facilities that are in disposal of human waste. organizations). For all other transactions
proper operating condition, are private, (6) Thermal environment. The and activities, the following restrictions
and are adequate for personal housing must have any necessary apply:
cleanliness and the disposal of human heating/cooling facilities in proper (1) Conflicts prohibited. No person
waste. operating condition. described in paragraph (b)(2) of this
(7) Thermal environment. The shelter (7) Illumination and electricity. The section who exercises or has exercised
must have any necessary heating/ structure must have adequate natural or any functions or responsibilities with
cooling facilities in proper operating artificial illumination to permit normal respect to activities assisted under the
condition. indoor activities and support health and ESG program, or who is in a position to
(8) Illumination and electricity. The safety. There must be sufficient participate in a decision-making process
shelter must have adequate natural or electrical sources to permit the safe use or gain inside information with regard
artificial illumination to permit normal of electrical appliances in the structure. to activities assisted under the program,
(8) Food preparation. All food may obtain a financial interest or benefit
indoor activities and support health and
preparation areas must contain suitable from an assisted activity; have a
safety. There must be sufficient
space and equipment to store, prepare, financial interest in any contract,
electrical sources to permit the safe use
and serve food in a safe and sanitary subcontract, or agreement with respect
of electrical appliances in the shelter.
manner. to an assisted activity; or have a
(9) Food preparation. Food
(9) Sanitary conditions. The housing
preparation areas, if any, must contain financial interest in the proceeds
must be maintained in a sanitary
suitable space and equipment to store, derived from an assisted activity, either
condition.
prepare, and serve food in a safe and for him or herself or for those with
(10) Fire safety. (i) There must be a
sanitary manner. whom he or she has family or business
second means of exiting the building in
(10) Sanitary conditions. The shelter ties, during his or her tenure or during
the event of fire or other emergency.
must be maintained in a sanitary (ii) Each unit must include at least the one-year period following his or her
condition. one battery-operated or hard-wired tenure.
(11) Fire safety. There must be at least smoke detector, in proper working (2) Persons covered. The conflict-of-
one working smoke detector in each condition, on each occupied level of the interest provisions of paragraph (b)(1) of
occupied unit of the shelter. Where unit. Smoke detectors must be located, this section apply to any person who is
possible, smoke detectors must be to the extent practicable, in a hallway an employee, agent, consultant, officer,
located near sleeping areas. The fire adjacent to a bedroom. If the unit is or elected or appointed official of the
alarm system must be designed for occupied by hearing impaired persons, recipient or its subrecipients.
hearing-impaired residents. All public smoke detectors must have an alarm (3) Exceptions. Upon the written
areas of the shelter must have at least system designed for hearing-impaired request of the recipient, HUD may grant
one working smoke detector. There persons in each bedroom occupied by a an exception to the provisions of this
must also be a second means of exiting hearing-impaired person. subsection on a case-by-case basis,
the building in the event of fire or other (iii) The public areas of all housing taking into account the cumulative
emergency. must be equipped with a sufficient effects of the criteria in paragraph
(c) Minimum standards for permanent number, but not less than one for each (b)(3)(ii) of this section, provided that
housing. The recipient or subrecipient area, of battery-operated or hard-wired the recipient has satisfactorily met the
cannot use ESG funds to help a program smoke detectors. Public areas include, threshold requirements of paragraph
participant remain or move into housing but are not limited to, laundry rooms, (b)(3)(i) of this section.
that does not meet the minimum community rooms, day care centers, (i) Threshold requirements. HUD will
habitability standards provided in this hallways, stairwells, and other common consider an exception only after the
paragraph (c). The recipient may also areas. recipient has provided the following
establish standards that exceed or add to documentation:
these minimum standards. § 576.404 Conflicts of interest. (A) If the recipient or subrecipient is
(1) Structure and materials. The (a) Organizational conflicts of interest. a government, disclosure of the nature
pmangrum on DSK3VPTVN1PROD with RULES2
structures must be structurally sound to The provision of any type or amount of of the conflict, accompanied by an
protect residents from the elements and ESG assistance may not be conditioned assurance that there has been public
not pose any threat to the health and on an individual’s or family’s disclosure of the conflict and a
safety of the residents. acceptance or occupancy of emergency description of how the public disclosure
(2) Space and security. Each resident shelter or housing owned by the was made; and
must be provided adequate space and recipient, the subrecipient, or a parent (B) An opinion of the recipient’s
security for themselves and their or subsidiary of the subrecipient. No attorney that the interest for which the
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75988 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
exception is sought would not violate (c) To the maximum extent that those structures are used for
state or local law. practicable, the recipient or subrecipient inherently religious activities. Solutions
(ii) Factors to be considered for must involve homeless individuals and ESG funds may be used for the
exceptions. In determining whether to families in constructing, renovating, rehabilitation of structures only to the
grant a requested exception after the maintaining, and operating facilities extent that those structures are used for
recipient has satisfactorily met the assisted under ESG, in providing conducting eligible activities under the
threshold requirements under paragraph services assisted under ESG, and in ESG program. Where a structure is used
(b)(3)(i) of this section, HUD must providing services for occupants of for both eligible and inherently religious
conclude that the exception will serve facilities assisted under ESG. This activities, ESG funds may not exceed
to further the purposes of the ESG involvement may include employment the cost of those portions of the
program and the effective and efficient or volunteer services. rehabilitation that are attributable to
administration of the recipient’s or eligible activities in accordance with the
§ 576.406 Faith-based activities. cost accounting requirements applicable
subrecipient’s program or project, taking
into account the cumulative effect of the (a) Organizations that are religious or to ESG funds. Sanctuaries, chapels, or
following factors, as applicable: faith-based are eligible, on the same other rooms that an ESG-funded
basis as any other organization, to religious congregation uses as its
(A) Whether the exception would
receive ESG funds. Neither the Federal principal place of worship, however, are
provide a significant cost benefit or an
Government nor a State or local ineligible for funded improvements
essential degree of expertise to the
government receiving funds under ESG under the program. Disposition of real
program or project that would otherwise
shall discriminate against an property after the term of the grant, or
not be available;
organization on the basis of the any change in use of the property during
(B) Whether an opportunity was organization’s religious character or
provided for open competitive bidding the term of the grant, is subject to
affiliation. government-wide regulations governing
or negotiation; (b) Organizations that are directly
(C) Whether the affected person has real property disposition (see 24 CFR
funded under the ESG program may not parts 84 and 85).
withdrawn from his or her functions, engage in inherently religious activities, (f) If the recipient or a subrecipient
responsibilities or the decision-making such as worship, religious instruction, that is a local government voluntarily
process with respect to the specific or proselytization as part of the contributes its own funds to supplement
activity in question; programs or services funded under ESG. federally funded activities, the recipient
(D) Whether the interest or benefit If an organization conducts these or subrecipient has the option to
was present before the affected person activities, the activities must be offered segregate the Federal funds or
was in the position described in separately, in time or location, from the commingle them. However, if the funds
paragraph (b)(1) of this section; programs or services funded under ESG, are commingled, this section applies to
(E) Whether undue hardship results to and participation must be voluntary for all of the commingled funds.
the recipient, the subrecipient, or the program participants.
person affected, when weighed against (c) Any religious organization that § 576.407 Other Federal requirements.
the public interest served by avoiding receives ESG funds retains its (a) General. The requirements in 24
the prohibited conflict; and independence from Federal, State, and CFR part 5, subpart A are applicable,
(F) Any other relevant considerations. local governments, and may continue to including the nondiscrimination and
(c) Contractors. All contractors of the carry out its mission, including the equal opportunity requirements at 24
recipient or subrecipient must comply definition, practice, and expression of CFR 5.105(a). Section 3 of the Housing
with the same requirements that apply its religious beliefs, provided that the and Urban Development Act of 1968, 12
to subrecipients under this section. religious organization does not use U.S.C. 1701u, and implementing
direct ESG funds to support any regulations at 24 CFR part 135 apply,
§ 576.405 Homeless participation. except that homeless individuals have
inherently religious activities, such as
(a) Unless the recipient is a State, the worship, religious instruction, or priority over other Section 3 residents in
recipient must provide for the proselytization. Among other things, accordance with § 576.405(c).
participation of not less than one faith-based organizations may use space (b) Affirmative outreach. The
homeless individual or formerly in their facilities to provide ESG-funded recipient or subrecipient must make
homeless individual on the board of services, without removing religious art, known that use of the facilities,
directors or other equivalent policy- icons, scriptures, or other religious assistance, and services are available to
making entity of the recipient, to the symbols. In addition, an ESG-funded all on a nondiscriminatory basis. If it is
extent that the entity considers and religious organization retains its unlikely that the procedures that the
makes policies and decisions regarding authority over its internal governance, recipient or subrecipient intends to use
any facilities, services, or other and the organization may retain to make known the availability of the
assistance that receive funding under religious terms in its organization’s facilities, assistance, and services will to
Emergency Solutions Grant (ESG). name, select its board members on a reach persons of any particular race,
(b) If the recipient is unable to meet religious basis, and include religious color, religion, sex, age, national origin,
requirement under paragraph (a), it references in its organization’s mission familial status, or disability who may
must instead develop and implement a statements and other governing qualify for those facilities and services,
plan to consult with homeless or documents. the recipient or subrecipient must
formerly homeless individuals in (d) An organization that receives ESG establish additional procedures that
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considering and making policies and funds shall not, in providing ESG ensure that those persons are made
decisions regarding any facilities, assistance, discriminate against a aware of the facilities, assistance, and
services, or other assistance that receive program participant or prospective services. The recipient and its
funding under Emergency Solutions program participant on the basis of subrecipients must take appropriate
Grant (ESG). The plan must be included religion or religious belief. steps to ensure effective communication
in the annual action plan required (e) ESG funds may not be used for the with persons with disabilities including,
under 24 CFR 91.220. rehabilitation of structures to the extent but not limited to, adopting procedures
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75989
that will make available to interested materials practicable, consistent with 49 CFR part 24, replacement dwellings
persons information concerning the maintaining a satisfactory level of must also contain the accessibility
location of assistance, services, and competition, where the purchase price features needed by displaced persons
facilities that are accessible to persons of the item exceeds $10,000 or the value with disabilities.
with disabilities. Consistent with Title of the quantity acquired by the (2) Displaced Person. (i) For purposes
VI and Executive Order 13166, preceding fiscal year exceeded $10,000; of paragraph (c) of this section, the term
recipients and subrecipients are also procuring solid waste management ‘‘displaced person’’ means any person
required to take reasonable steps to services in a manner that maximizes (family, individual, business, nonprofit
ensure meaningful access to programs energy and resource recovery; and organization, or farm, including any
and activities for limited English establishing an affirmative procurement corporation, partnership, or association)
proficiency (LEP) persons. program for procurement of recovered that moves from real property, or moves
(c) Uniform Administrative materials identified in the EPA personal property from real property,
Requirements. The requirements of 24 guidelines. permanently, as a direct result of
CFR part 85 apply to the recipient and acquisition, rehabilitation, or
subrecipients that are units of general § 576.408 Displacement, relocation, and demolition for a project assisted under
acquisition.
purpose local government, except that the ESG program. This includes any
24 CFR 85.24 and 85.42 do not apply, (a) Minimizing displacement. permanent, involuntary move for an
and program income is to be used as Consistent with the other goals and assisted project, including any
match under 24 CFR 85.25(g). The objectives of Emergency Solutions Grant permanent move from the real property
requirements of 24 CFR part 84 apply to (ESG), the recipient and its that is made:
subrecipients that are private nonprofit subrecipients must assure that they have (A) After the owner (or person in
organizations, except that 24 CFR 84.23 taken all reasonable steps to minimize control of the site) issues a notice to
and 84.53 do not apply, and program the displacement of persons (families, move permanently from the property or
income is to be used as the nonfederal individuals, businesses, nonprofit refuses to renew an expiring lease, if the
share under 24 CFR 84.24(b). These organizations, and farms) as a result of move occurs on or after:
regulations include allowable costs and a project assisted under Emergency (I) The date of the submission by the
non-Federal audit requirements. Solutions Grant (ESG). recipient (or subrecipient, as applicable)
(d) Environmental review (b) Temporary relocation not of an application for assistance to HUD
responsibilities. (1) Activities under this permitted. No tenant-occupant of (or the recipient, as applicable) that is
part are subject to environmental review housing (a dwelling unit) that is later approved and funded if the
by HUD under 24 CFR part 50. The converted into an emergency shelter recipient (or subrecipient, as applicable)
recipient shall supply all available, may be required to relocate temporarily has site control as evidenced by a deed,
relevant information necessary for HUD for a project assisted with ESG funds, or sales contract, or option contract to
to perform for each property any be required to move to another unit in acquire the property; or
environmental review required by 24 the same building/complex. When a (II) The date on which the recipient
CFR part 50. The recipient also shall tenant moves for a project assisted with (or subrecipient, as applicable) selects
carry out mitigating measures required ESG funds under conditions that trigger the applicable site, if the recipient (or
by HUD or select alternate eligible the Uniform Relocation Assistance and subrecipient, as applicable) does not
property. HUD may eliminate from Real Property Acquisition Policies Act have site control at the time of the
consideration any application that of 1970 (URA), 42 U.S.C. 4601–4655, as application, provided that the recipient
would require an Environmental Impact described in paragraph (c) of this (or subrecipient, as applicable)
Statement (EIS). section, the tenant should be treated as eventually obtains control over the site;
(2) The recipient or subrecipient, or permanently displaced and offered (B) Before the date described in
any contractor of the recipient or relocation assistance and payments paragraph (c)(2)(i)(A) of this section, if
subrecipient, may not acquire, consistent with that paragraph. the recipient or HUD determines that
rehabilitate, convert, lease, repair, (c) Relocation assistance for displaced the displacement resulted directly from
dispose of, demolish, or construct persons. (1) In general. A displaced acquisition, rehabilitation, or
property for a project under this part, or person (defined in paragraph (c)(2) of demolition for the project; or
commit or expend HUD or local funds this section) must be provided (C) By a tenant-occupant of a dwelling
for eligible activities under this part, relocation assistance at the levels unit and the tenant moves after
until HUD has performed an described in, and in accordance with, execution of the agreement covering the
environmental review under 24 CFR the URA and 49 CFR part 24. A acquisition, rehabilitation, or
part 50 and the recipient has received displaced person must be advised of his demolition of the property for the
HUD approval of the property. or her rights under the Fair Housing Act project.
(e) Davis-Bacon Act. The provisions of (42 U.S.C. 3601 et seq.). Whenever (ii) Notwithstanding paragraph
the Davis-Bacon Act (40 U.S.C. 276a to possible, minority persons shall be (c)(2)(i) of this section, a person does
276a–5) do not apply to the ESG given reasonable opportunities to not qualify as a displaced person if:
program. relocate to comparable and suitable (A) The person has been evicted for
(f) Procurement of Recovered decent, safe, and sanitary replacement cause based upon a serious or repeated
Materials. The recipient and its dwellings, not located in an area of violation of the terms and conditions of
contractors must comply with Section minority concentration, that are within the lease or occupancy agreement;
6002 of the Solid Waste Disposal Act, as their financial means. This policy, violation of applicable Federal, State or
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amended by the Resource Conservation however, does not require providing a local law, or other good cause; and the
and Recovery Act. The requirements of person a larger payment than is recipient determines that the eviction
Section 6002 include procuring only necessary to enable a person to relocate was not undertaken for the purpose of
items designated in guidelines of the to a comparable replacement dwelling. evading the obligation to provide
Environmental Protection Agency (EPA) (See 49 CFR 24.205(c)(2)(ii)(D).) As relocation assistance.
at 40 CFR part 247 that contain the required by Section 504 of the (B) The person moved into the
highest percentage of recovered Rehabilitation Act (29 U.S.C. 794) and property after the submission of the
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75990 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
application but, before signing a lease Subpart F—Grant Administration (i) Discharge paperwork or a written
and commencing occupancy, was or oral referral from a social worker,
provided written notice of the project, § 576.500 Recordkeeping and reporting case manager, or other appropriate
requirements. official of the institution, stating the
its possible impact on the person (e.g.,
the person may be displaced), and the (a) In general. The recipient must beginning and end dates of the time
fact that the person would not qualify as have policies and procedures to ensure residing in the institution. All oral
a ‘‘displaced person’’ (or for any the requirements of this part are met. statements must be recorded by the
assistance under this section) as a result The policies and procedures must be intake worker; or
of the project; established in writing and implemented (ii) Where the evidence in paragraph
by the recipient and its subrecipients to (b)(2)(i) of this section is not obtainable,
(C) The person is ineligible under 49 ensure that ESG funds are used in a written record of the intake worker’s
CFR 24.2(a)(9)(ii); or accordance with the requirements. In due diligence in attempting to obtain
(D) HUD determines that the person addition, sufficient records must be the evidence described in paragraph
was not displaced as a direct result of established and maintained to enable (b)(2)(i) and a certification by the
acquisition, rehabilitation, or the recipient and HUD to determine individual seeking assistance that states
demolition for the project. whether ESG requirements are being he or she is exiting or has just exited an
(iii) The recipient or subrecipient met. institution where he or she resided for
may, at any time, request that HUD to (b) Homeless status. The recipient 90 days or less.
determine whether a displacement is or must maintain and follow written intake (3) If the individual or family qualifies
would be covered by this rule. procedures to ensure compliance with as homeless under paragraph (2) of the
the homeless definition in § 576.2. The homeless definition in § 576.2, because
(3) Initiation of negotiations. For
procedures must require documentation the individual or family will
purposes of determining the type of
at intake of the evidence relied upon to imminently lose their housing, the
replacement housing payment
establish and verify homeless status. evidence must include:
assistance to be provided to a displaced
The procedures must establish the order (i)(A) A court order resulting from an
person pursuant to this section:
of priority for obtaining evidence as eviction action that requires the
(i) If the displacement is the direct third-party documentation first, intake individual or family to leave their
result of privately undertaken worker observations second, and residence within 14 days after the date
rehabilitation, demolition, or certification from the person seeking of their application for homeless
acquisition of the real property, assistance third. However, lack of third- assistance; or the equivalent notice
‘‘initiation of negotiations’’ means the party documentation must not prevent under applicable state law, a Notice to
execution of the agreement between the an individual or family from being Quit, or a Notice to Terminate issued
recipient and the subrecipient or the immediately admitted to emergency under state law;
agreement between the recipient (or shelter, receiving street outreach (B) For individuals and families
subrecipient, as applicable) and the services, or being immediately admitted whose primary nighttime residence is a
person owning or controlling the to shelter or receiving services provided hotel or motel room not paid for by
property; by a victim service provider. Records charitable organizations or federal, state,
(ii) If site control is only evidenced by contained in an HMIS or comparable or local government programs for low-
an option contract to acquire the database used by victim service or legal income individuals, evidence that the
property, the ‘‘initiation of negotiations’’ service providers are acceptable individual or family lacks the resources
does not become effective until the evidence of third-party documentation necessary to reside there for more than
execution of a written agreement that and intake worker observations if the 14 days after the date of application for
creates a legally enforceable HMIS retains an auditable history of all homeless assistance; or
commitment to proceed with the entries, including the person who (C) An oral statement by the
purchase, such as a sales contract. entered the data, the date of entry, and individual or head of household that the
the change made; and if the HMIS owner or renter of the housing in which
(d) Real property acquisition prevents overrides or changes of the they currently reside will not allow
requirements. The acquisition of real dates on which entries are made. them to stay for more than 14 days after
property, whether funded privately or (1) If the individual or family qualifies the date of application for homeless
publicly, for a project assisted with as homeless under paragraph (1)(i) or assistance. The intake worker must
Emergency Solutions Grant (ESG) funds (ii) of the homeless definition in § 576.2, record the statement and certify that it
is subject to the URA and Federal acceptable evidence includes a written was found credible. To be found
governmentwide regulations at 49 CFR observation by an outreach worker of credible, the oral statement must either:
part 24, subpart B. the conditions where the individual or (I) be verified by the owner or renter of
(e) Appeals. A person who disagrees family was living, a written referral by the housing in which the individual or
with the recipient’s (or subrecipient’s, if another housing or service provider, or family resides at the time of application
applicable) determination concerning a certification by the individual or head for homeless assistance and
whether the person qualifies as a of household seeking assistance. documented by a written certification
displaced person, or the amount of (2) If the individual qualifies as by the owner or renter or by the intake
relocation assistance for which the homeless under paragraph (1)(iii) of the worker’s recording of the owner or
person may be eligible, may file a homeless definition in § 576.2, because renter’s oral statement; or (II) if the
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written appeal of that determination he or she resided in an emergency intake worker is unable to contact the
with the recipient under 49 CFR 24.10. shelter or place not meant for human owner or renter, be documented by a
A low-income person who disagrees habitation and is exiting an institution written certification by the intake
with the recipient’s determination may where he or she resided for 90 days or worker of his or her due diligence in
submit a written request for review of less, acceptable evidence includes the attempting to obtain the owner or
that determination by the appropriate evidence described in paragraph (b)(1) renter’s verification and the written
HUD field office. of this section and one of the following: certification by the individual or head of
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75991
household seeking assistance that his or move was due to the individual or other organization from whom the
her statement was true and complete; family fleeing domestic violence, dating individual or head of household has
(ii) Certification by the individual or violence, sexual assault, or stalking, sought assistance for domestic violence,
head of household that no subsequent then the intake worker may alternatively dating violence, sexual assault, or
residence has been identified; and obtain a written certification from the stalking. The written referral or
(iii) Certification or other written individual or head of household seeking observation need only include the
documentation that the individual or assistance that they were fleeing that minimum amount of information
family lacks the resources and support situation and that they resided at that necessary to document that the
networks needed to obtain other address; and individual or family is fleeing, or
permanent housing. (iv) For paragraph (3)(iv) of the attempting to flee domestic violence,
(4) If the individual or family qualifies homeless definition in § 576.2, written dating violence, sexual assault, and
as homeless under paragraph (3) of the diagnosis from a professional who is stalking.
homeless definition in § 576.2, because licensed by the state to diagnose and (c) At risk of homelessness status. For
the individual or family does not treat that condition (or intake staff- each individual or family who receives
otherwise qualify as homeless under the recorded observation of disability that Emergency Solutions Grant (ESG)
homeless definition but is an within 45 days of date of the application homelessness prevention assistance, the
unaccompanied youth under 25 years of for assistance is confirmed by a records must include the evidence
age, or homeless family with one or professional who is licensed by the state relied upon to establish and verify the
more children or youth, and is defined to diagnose and treat that condition); individual or family’s ‘‘at risk of
as homeless under another Federal employment records; department of homelessness’’ status. This evidence
statute or section 725(2) of the corrections records; literacy, English must include an intake and certification
McKinney-Vento Homeless Assistance proficiency tests; or other reasonable form that meets HUD specifications and
Act (42 U.S.C. 11434a(2)), the evidence documentation of the conditions is completed by the recipient or
must include: required under paragraph (3)(iv) of the subrecipient. The evidence must also
(i) For paragraph (3)(i) of the homeless homeless definition. include:
definition in § 576.2, certification of (5) If the individual or family qualifies (1) If the program participant meets
homeless status by the local private under paragraph (4) of the homeless the criteria under paragraph (1) of the
nonprofit organization or state or local definition in § 576.2, because the ‘‘at risk of homelessness’’ definition in
governmental entity responsible for individual or family is fleeing domestic § 576.2:
administering assistance under the violence, dating violence, sexual (i) The documentation specified
Runaway and Homeless Youth Act (42 assault, stalking, or other dangerous or under this section for determining
U.S.C. 5701 et seq.), the Head Start Act life-threatening conditions related to annual income;
(42 U.S.C. 9831 et seq.), subtitle N of the violence, then acceptable evidence (ii) The program participant’s
Violence Against Women Act of 1994 includes an oral statement by the certification on a form specified by HUD
(42 U.S.C. 14043e et seq.), section 330 individual or head of household seeking that the program participant has
of the Public Health Service Act (42 assistance that they are fleeing that insufficient financial resources and
U.S.C. 254b), the Food and Nutrition situation, that no subsequent residence support networks; e.g., family, friends,
Act of 2008 (7 U.S.C. 2011 et seq.), has been identified and that they lack faith-based or other social networks,
section 17 of the Child Nutrition Act of the resources or support networks, e.g., immediately available to attain housing
1966 (42 U.S.C. 1786), or subtitle B of family, friends, faith-based or other stability and meets one or more of the
title VII of the McKinney-Vento social networks, needed to obtain other conditions under paragraph (1)(iii) of
Homeless Assistance Act (42 U.S.C. housing. If the individual or family is the definition of ‘‘at risk of
11431 et seq.), as applicable; receiving shelter or services provided by homelessness’’ in § 576.2;
(ii) For paragraph (3)(ii) of the a victim service provider, the oral (iii) The most reliable evidence
homeless definition in § 576.2, referral statement must be documented by either available to show that the program
by a housing or service provider, written a certification by the individual or head participant does not have sufficient
observation by an outreach worker, or of household; or a certification by the resources or support networks; e.g.,
certification by the homeless individual intake worker. Otherwise, the oral family, friends, faith-based or other
or head of household seeking assistance; statement that the individual or head of social networks, immediately available
(iii) For paragraph (3)(iii) of the household seeking assistance has not to prevent them from moving to an
homeless definition in § 576.2, identified a subsequent residence and emergency shelter or another place
certification by the individual or head of lacks the resources or support networks, described in paragraph (1) of the
household and any available supporting e.g., family, friends, faith-based or other ‘‘homeless’’ definition. Acceptable
documentation that the individual or social networks, needed to obtain evidence includes:
family moved two or more times during housing must be documented by a (A) Source documents (e.g., notice of
the 60-day period immediately certification by the individual or head of termination from employment,
preceding the date of application for household that the oral statement is true unemployment compensation
homeless assistance, including: and complete, and, where the safety of statement, bank statement, health-care
recorded statements or records obtained the individual or family would not be bill showing arrears, utility bill showing
from each owner or renter of housing, jeopardized, the domestic violence, arrears);
provider of shelter or housing, or social dating violence, sexual assault, stalking, (B) To the extent that source
worker, case worker, or other or other dangerous or life-threatening documents are unobtainable, a written
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appropriate official of a hospital or condition must be verified by a written statement by the relevant third party
institution in which the individual or observation by the intake worker or a (e.g., former employer, public
family resided; or, where these written referral by a housing or service administrator, relative) or the written
statements or records are unobtainable, provider, social worker, legal assistance certification by the recipient’s or
a written record of the intake worker’s provider, health-care provider, law subrecipient’s intake staff of the oral
due diligence in attempting to obtain enforcement agency, legal assistance verification by the relevant third party
these statements or records. Where a provider, pastoral counselor, or any that the applicant meets one or both of
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75992 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
the criteria under paragraph (1)(ii) of the (d) Determinations of ineligibility. For appropriate assistance and services at
definition of ‘‘at risk of homelessness’’ each individual and family determined § 576.401(d) and (e); and
in § 576.2; or ineligible to receive Emergency (3) Where applicable, compliance
(C) To the extent that source Solutions Grant (ESG) assistance, the with the termination of assistance
documents and third-party verification record must include documentation of requirement in § 576.402.
are unobtainable, a written statement by the reason for that determination. (g) Centralized or coordinated
the recipient’s or subrecipient’s intake (e) Annual income. For each program assessment systems and procedures.
staff describing the efforts taken to participant who receives homelessness The recipient and its subrecipients must
obtain the required evidence; and prevention assistance, or who receives keep documentation evidencing the use
(iv) The most reliable evidence rapid re-housing assistance longer than of, and written intake procedures for,
available to show that the program one year, the following documentation the centralized or coordinated
participant meets one or more of the of annual income must be maintained: assessment system(s) developed by the
conditions under paragraph (1)(iii) of (1) Income evaluation form containing Continuum of Care(s) in accordance
the definition of ‘‘at risk of the minimum requirements specified by with the requirements established by
homelessness’’ in § 576.2. Acceptable HUD and completed by the recipient or HUD.
subrecipient; and (h) Rental assistance agreements and
evidence includes:
payments. The records must include
(A) Source documents that evidence (2) Source documents for the assets
copies of all leases and rental assistance
one or more of the conditions under held by the program participant and
agreements for the provision of rental
paragraph (1)(iii) of the definition (e.g., income received over the most recent
assistance, documentation of payments
eviction notice, notice of termination period for which representative data is
made to owners for the provision of
from employment, bank statement); available before the date of the
rental assistance, and supporting
(B) To the extent that source evaluation (e.g., wage statement,
documentation for these payments,
documents are unobtainable, a written unemployment compensation
including dates of occupancy by
statement by the relevant third party statement, public benefits statement,
program participants.
(e.g., former employer, owner, primary bank statement); (i) Utility allowance. The records must
leaseholder, public administrator, hotel (3) To the extent that source document the monthly allowance for
or motel manager) or the written documents are unobtainable, a written utilities (excluding telephone) used to
certification by the recipient’s or statement by the relevant third party determine compliance with the rent
subrecipient’s intake staff of the oral (e.g., employer, government benefits restriction.
verification by the relevant third party administrator) or the written (j) Shelter and housing standards. The
that the applicant meets one or more of certification by the recipient’s or records must include documentation of
the criteria under paragraph (1)(iii) of subrecipient’s intake staff of the oral compliance with the shelter and
the definition of ‘‘at risk of verification by the relevant third party housing standards in § 576.403,
homelessness’’; or of the income the program participant including inspection reports.
(C) To the extent that source received over the most recent period for (k) Emergency shelter facilities. The
documents and third-party verification which representative data is available; recipient must keep records of the
are unobtainable, a written statement by or emergency shelters assisted under the
the recipient’s or subrecipient’s intake (4) To the extent that source ESG program, including the amount and
staff that the staff person has visited the documents and third party verification type of assistance provided to each
applicant’s residence and determined are unobtainable, the written emergency shelter. As applicable, the
that the applicant meets one or more of certification by the program participant recipient’s records must also include
the criteria under paragraph (1)(iii) of of the amount of income the program documentation of the value of the
the definition or, if a visit is not participant received for the most recent building before the rehabilitation of an
practicable or relevant to the period representative of the income that existing emergency shelter or after the
determination, a written statement by the program participant is reasonably conversion of a building into an
the recipient’s or subrecipient’s intake expected to receive over the 3-month emergency shelter and copies of the
staff describing the efforts taken to period following the evaluation. recorded deed or use restrictions.
obtain the required evidence; or (f) Program participant records. In (l) Services and assistance provided.
(2) If the program participant meets addition to evidence of homeless status The recipient must keep records of the
the criteria under paragraph (2) or (3) of or ‘‘at risk of homelessness’’ status, as types of essential services, rental
the ‘‘at risk of homelessness’’ definition applicable, records must be kept for assistance, and housing stabilization
in § 576.2, certification of the child or each program participant that and relocation services provided under
youth’s homeless status by the agency or document: the recipient’s program and the amounts
organization responsible for (1) The services and assistance spent on these services and assistance.
administering assistance under the provided to that program participant, The recipient and its subrecipients that
Runaway and Homeless Youth Act (42 including, as applicable, the security are units of general purpose local
U.S.C. 5701 et seq.), the Head Start Act deposit, rental assistance, and utility government must keep records to
(42 U.S.C. 9831 et seq.), subtitle N of the payments made on behalf of the demonstrate compliance with the
Violence Against Women Act of 1994 program participant; maintenance of effort requirement,
(42 U.S.C. 14043e et seq.), section 330 (2) Compliance with the applicable including records of the unit of the
of the Public Health Service Act (42 requirements for providing services and general purpose local government’s
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U.S.C. 254b), the Food and Nutrition assistance to that program participant annual budgets and sources of funding
Act of 2008 (7 U.S.C. 2011 et seq.), under the program components and for street outreach and emergency
section 17 of the Child Nutrition Act of eligible activities provisions at § 576.101 shelter services.
1966 (42 U.S.C. 1786) or subtitle B of through § 576.106, the provision on (m) Coordination with Continuum(s)
title VII of the McKinney-Vento determining eligibility and amount and of Care and other programs. The
Homeless Assistance Act (42 U.S.C. type of assistance at § 576.401(a) and recipient and its subrecipients must
11431 et seq.), as applicable. (b), and the provision on using document their compliance with the
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Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations 75993
requirements of § 576.400 for consulting requirements, including flood insurance (ii) The address or location of any
with the Continuum(s) of Care and requirements. domestic violence, dating violence,
coordinating and integrating ESG (4) Certifications and disclosure forms sexual assault, or stalking shelter project
assistance with programs targeted required under the lobbying and assisted under the ESG will not be made
toward homeless people and disclosure requirements in 24 CFR part public, except with written
mainstream service and assistance 87. authorization of the person responsible
programs. (t) Relocation. The records must for the operation of the shelter; and
(n) HMIS. The recipient must keep include documentation of compliance (iii) The address or location of any
records of the participation in HMIS or with the displacement, relocation, and housing of a program participant will
a comparable database by all projects of acquisition requirements in § 576.408. not be made public, except as provided
the recipient and its subrecipients. (u) Financial records. (1) The under a preexisting privacy policy of the
(o) Matching. The recipient must keep recipient must retain supporting recipient or subrecipient and consistent
records of the source and use of documentation for all costs charged to with state and local laws regarding
contributions made to satisfy the the ESG grant. privacy and obligations of
matching requirement in § 576.201. The (2) The recipient and its subrecipients confidentiality.
records must indicate the particular must keep documentation showing that (2) The confidentiality procedures of
fiscal year grant for which each ESG grant funds were spent on the recipient and its subrecipients must
matching contribution is counted. The allowable costs in accordance with the be in writing and must be maintained in
records must show how the value requirements for eligible activities accordance with this section.
placed on third-party, noncash (y) Period of record retention. All
under § 576.101-§ 576.109 and the cost
contributions was derived. To the extent records pertaining to each fiscal year of
principles in OMB Circulars A–87 (2
feasible, volunteer services must be ESG funds must be retained for the
CFR part 225) and A–122 (2 CFR part
supported by the same methods that the greater of 5 years or the period specified
230).
organization uses to support the below. Copies made by microfilming,
(3) The recipient and its subrecipients photocopying, or similar methods may
allocation of regular personnel costs. must retain records of the receipt and
(p) Conflicts of interest. The recipient be substituted for the original records.
use of program income. (1) Documentation of each program
and its subrecipients must keep records (4) The recipient must keep
to show compliance with the participant’s qualification as a family or
documentation of compliance with the individual at risk of homelessness or as
organizational conflicts-of-interest expenditure limits in § 576.100 and the
requirements in § 576.404(a), a copy of a homeless family or individual and
expenditure deadline in § 576.203. other program participant records must
the personal conflicts of interest policy
(v) Subrecipients and contractors. (1) be retained for 5 years after the
or codes of conduct developed and
The recipient must retain copies of all expenditure of all funds from the grant
implemented to comply with the
solicitations of and agreements with under which the program participant
requirements in § 576.404(b), and
subrecipients, records of all payment was served;
records supporting exceptions to the
requests by and dates of payments made (2) Where ESG funds are used for the
personal conflicts of interest
to subrecipients, and documentation of renovation of an emergency shelter
prohibitions.
all monitoring and sanctions of involves costs charged to the ESG grant
(q) Homeless participation. The
subrecipients, as applicable. If the that exceed 75 percent of the value of
recipient must document its compliance
recipient is a State, the recipient must the building before renovation, records
with the homeless participation
keep records of each recapture and must be retained until 10 years after the
requirements under § 576.405.
(r) Faith-based activities. The distribution of recaptured funds under date that ESG funds are first obligated
recipient and its subrecipients must § 576.501. for the renovation; and
document their compliance with the (2) The recipient and its subrecipients (3) Where ESG funds are used to
faith-based activities requirements must retain copies of all procurement convert a building into an emergency
under § 576.406. contracts and documentation of shelter and the costs charged to the ESG
(s) Other Federal requirements. The compliance with the procurement grant for the conversion exceed 75
recipient and its subrecipients must requirements in 24 CFR 85.36 and 24 percent of the value of the building after
document their compliance with the CFR 84.40–84.48. conversion, records must be retained
Federal requirements in § 576.407, as (3) The recipient must ensure that its until 10 years after the date that ESG
applicable, including: subrecipients comply with the funds are first obligated for the
(1) Records demonstrating compliance recordkeeping requirements specified conversion.
with the nondiscrimination and equal by the recipient and HUD notice or (z) Access to records. (1) Federal
opportunity requirements under regulations. government rights. Notwithstanding the
§ 576.407(a), including data concerning (w) Other records specified by HUD. confidentiality procedures established
race, ethnicity, disability status, sex, The recipient must keep other records under paragraph (w) of this section,
and family characteristics of persons specified by HUD. HUD, the HUD Office of the Inspector
and households who are applicants for, (x) Confidentiality. (1) The recipient General, and the Comptroller General of
or program participants in, any program and its subrecipients must develop and the United States, or any of their
or activity funded in whole or in part implement written procedures to authorized representatives, must have
with ESG funds and the affirmative ensure: the right of access to all books,
(i) All records containing personally documents, papers, or other records of
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outreach requirements in § 576.407(b).
(2) Records demonstrating compliance identifying information (as defined in the recipient and its subrecipients that
with the uniform administrative HUD’s standards for participation, data are pertinent to the ESG grant, in order
requirements in 24 CFR part 85 (for collection, and reporting in a local to make audits, examinations, excerpts,
governments) and 24 CFR part 84 (for HMIS) of any individual or family who and transcripts. These rights of access
nonprofit organizations). applies for and/or receives ESG are not limited to the required retention
(3) Records demonstrating compliance assistance will be kept secure and period but last as long as the records are
with the environmental review confidential; retained.
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75994 Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Rules and Regulations
(2) Public rights. The recipient must eligible activities in accordance with all reallocate those funds to other
provide citizens, public agencies, and ESG program requirements. recipients in accordance with subpart D
other interested parties with reasonable (3) If the recipient fails to demonstrate of this part.
access (consistent with state and local to HUD’s satisfaction that the activities (8) HUD may condition a future grant.
laws regarding privacy and obligations were carried out in compliance with (9) HUD may take other remedies that
of confidentiality and the ESG program requirements, HUD will are legally available.
confidentiality requirements in this take one or more of the remedial actions (c) Recipient sanctions. If the
part) to records regarding any uses of or sanctions specified in paragraph (b) recipient determines that a subrecipient
ESG funds the recipient received during of this section. is not complying with an ESG program
the preceding 5 years. (b) Remedial actions and sanctions. requirement or its subgrant agreement,
(aa) Reports. The recipient must Remedial actions and sanctions for a the recipient must take appropriate
collect and report data on its use of ESG failure to meet an ESG program actions, as prescribed for HUD in
funds in the Integrated Disbursement requirement will be designed to prevent paragraphs (a) and (b) of this section. If
and Information System (IDIS) and other a continuation of the deficiency; the recipient is a State and funds
reporting systems, as specified by HUD. mitigate, to the extent possible, its become available as a result of an action
The recipient must also comply with the adverse effects or consequences; and under this section, the recipient must
reporting requirements in 24 CFR parts prevent its recurrence. reallocate those funds to other
85 and 91 and the reporting (1) HUD may instruct the recipient to subrecipients as soon as practicable. If
requirements under the Federal Funding submit and comply with proposals for the recipient is a unit of general purpose
Accountability and Transparency Act of action to correct, mitigate, and prevent local government of territory, it must
2006, (31 U.S.C. 6101 note), which are noncompliance with ESG requirements, either reallocate those funds to other
set forth in Appendix A to 2 CFR part including: subrecipients or reprogram the funds for
170. (i) Preparing and following a schedule other activities to be carried out by the
of actions for carrying out activities recipient as soon as practicable. The
§ 576.501 Enforcement. affected by the noncompliance, recipient must amend its Consolidated
(a) Performance reviews. including schedules, timetables, and Plan in accordance with its citizenship
(1) HUD will review the performance milestones necessary to implement the
of each recipient in carrying out its participation plan if funds become
affected activities; available and are reallocated or
responsibilities under this part (ii) Establishing and following a
whenever determined necessary by reprogrammed under this section. The
management plan that assigns
HUD, but at least annually. In reallocated or reprogrammed funds
responsibilities for carrying out the
conducting performance reviews, HUD must be used by the expenditure
remedial actions;
will rely primarily on information (iii) Canceling or revising activities deadline in § 576.203.
obtained from the records and reports likely to be affected by the Dated: November 9, 2011.
from the recipient and, when noncompliance, before expending ESG ´
Mercedes Marquez,
appropriate, its subrecipients, as well as funds for the activities; Assistant Secretary for Community Planning
information from onsite monitoring, (iv) Reprogramming ESG funds that and Development.
audit reports, and information from IDIS have not yet been expended from [FR Doc. 2011–30938 Filed 12–2–11; 8:45 am]
and HMIS. Where applicable, HUD may affected activities to other eligible BILLING CODE 4210–67–P
also consider relevant information activities;
pertaining to the recipient’s (v) Suspending disbursement of ESG
performance gained from other sources, funds for some or all activities; DEPARTMENT OF HOUSING AND
including citizen comments, complaint (vi) Reducing or terminating the URBAN DEVELOPMENT
determinations, and litigation. Reviews remaining grant of a subrecipient and
to determine compliance with specific reallocating those funds to other 24 CFR Parts 91, 582, and 583
requirements of this part will be subrecipients; and
(vii) Making matching contributions [Docket No. FR–5333–F–02]
conducted as necessary, with or without
before or as draws are made from the RIN 2506–AC26
prior notice to the recipient.
(2) If HUD determines preliminarily recipient’s ESG grant.
(2) HUD may change the method of Homeless Emergency Assistance and
that the recipient or one of its
payment to a reimbursement basis. Rapid Transition to Housing: Defining
subrecipients has not complied with an (3) HUD may suspend payments to
ESG program requirement, HUD will ‘‘Homeless’’
the extent HUD deems it necessary to
give the recipient notice of this preclude the further expenditure of AGENCY: Office of the Assistant
determination and an opportunity to funds for affected activities. Secretary for Community Planning and
demonstrate, within the time prescribed (4) HUD may remove the recipient Development, HUD.
by HUD and on the basis of substantial from participation in reallocations of ACTION: Final rule.
facts and data, that the recipient has funds under subpart D of this part.
complied with Emergency Solutions (5) HUD may deny matching credit for SUMMARY: The Homeless Emergency
Grant (ESG) requirements. HUD may all or part of the cost of the affected Assistance and Rapid Transition to
change the method of payment to activities and require the recipient to Housing Act of 2009 (HEARTH Act),
require the recipient to obtain HUD’s make further matching contributions to enacted into law on May 20, 2009,
prior approval each time the recipient consolidates three of the separate
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make up for the contribution
draws down Emergency Solutions Grant determined to be ineligible. homeless assistance programs
(ESG) funds. To obtain prior approval, (6) HUD may require the recipient to administered by HUD under the
the recipient may be required to reimburse its line of credit in an amount McKinney-Vento Homeless Assistance
manually submit its payment requests equal to the funds used for the affected Act into a single grant program, revises
and supporting documentation to HUD activities. the Emergency Shelter Grants program
in order to show that the funds to be (7) HUD may reduce or terminate the and renames the program the
drawn down will be expended on remaining grant of a recipient and Emergency Solutions Grants program,
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