HUD’s Affordable Housing Programs
Public Housing Property Management: Modernization, Development, Maintenance and Relocation Handbook Volume 4A Regulations and Comprehensive Index A-C
2005 Edition
David Hoicka
Please Note: to be notified of updates, send an email with contact information to Books@PublicHousing.info
PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C
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ISBN Info Thank you for Cover Design to:
Tchopshop Media, LLC New Orleans, LA www.tchopshop.com
Copyright (c) 2004 by David Hoicka
All rights reserved. David Hoicka retains all intellectual property rights. No portion of this book may be reproduced – mechanically, electronically, or by any other means, including photocopying – without written permission of the author or publisher.
Notes:
The HUD Regulations, Forms, Handbooks, Guidebooks, and other documents referenced herein, are public documents published by HUD and the US Government Printing Office (GPO), and/or a local housing authority, respectively. These documents are generally available without cost by downloading from HUD’s online internet document library at www.hudclips.org or www.hud.gov. Many are also available by calling HUD’s clearinghouse. Some regulations are also available for free download from the GPO through www.access.gpo.gov. Housing Authority Plans such as Admin Plans and ACOPs are generally available through a local housing authority.
Disclaimers:
This publication is authored by David Hoicka. All opinions, if there are any, in this publication are the sole opinions of the author, and not the opinions of the Housing Authority of New Orleans, HUD, NCHM, NAHRO, or any other entity. No copyright is claimed in any underlying government or public documents. Disclaimer of Warranty and Liability. The author and publisher, their dealers and distributors, make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. There are no warranties that extend beyond the descriptions contained here. This Handbook is sold “as is”. No warranty may be created by any sales representatives or written sales materials. In no event shall the author, publisher, nor any dealers or distributors, be liable for any damages, direct, indirect, special, incidental, exemplary, or consequential damages arising out of use of this Handbook or use of the data contained herein, however caused, on any theory of liability, and whether or not the author has been advised of the possibility of such damage. Legal Information Is Not Legal Advice. This Handbook provides information about the law designed to help users safely cope with their own legal needs. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although the author goes to great lengths to make sure the information is accurate and useful, the author recommends you consult a lawyer if you want professional assurance that the enclosed information, and your interpretation of it, is appropriate to your particular situation.
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PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C
Table of Contents - Volume 4A
(pages numbered sequentially over both volumes) 1. 2. 3. 4. 5. Acknowledgments ....................................................................................... 4 Introduction ................................................................................................. 5 How to Use the Comprehensive Index ........................................................ 7 Statistics for Words appearing in the Comprehensive Index ...................... 7 Annotated Lists of PH Modernization, Development, Maintenance and Relocation Documents Indexed in this Handbook ............................... 8 1) Code of Federal Regulations, Indexed & Reprinted in this Handbook ........................................... 8 2) HUD Manuals and Guidebooks indexed ......................................... 9 3) HUD Forms indexed........................................................................ 9 4) PIH Notices indexed ...................................................................... 11 5) Note on Spelling in Source Documents......................................... 12 Related Regulations: Code of Federal Regulations (CFRs) ..................... 13 1) Summary CFR Table of Contents ................................................. 13 2) Detailed CFR Table of Contents ................................................... 13 3) Related CFRs ................................................................................ 30 Comprehensive Index for HUD Regulations and Documents ................ 429 1) Index: A-C (in Volume 4A) ....................................................... 429
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Table of Contents - Volume 4B
9. 10. Introductory Pages to Volume 4B ........................................................... 609 Comprehensive Index for HUD Regulations and Documents ................ 615 1) Index Continued: D-Z (in Volume 4B) ...................................... 615 Useful Web Sites .................................................................................. 1,181 a) HUD – www.hud.gov, and HUDCLIPS – www.hudclips.org ............................................ 1,181 b) NAHRO – National Association of Housing and Redevelopment Officials – www.nahro.org ............................ 1,184 c) PHADA – Public Housing Authorities Directors Association – www.phada.org ........................................................................ 1,185 d) NCHM – National Center for Housing Management – www.nchm.org ........................................................................ 1,186
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Acknowledgments
John Donne wrote, “No man is an island, entire of itself”. Similarly, no book is an island, entire unto itself, but reflects the input and advice of many. Thank you first to the many talented and hardworking people at the Housing Authority of New Orleans (HANO). There are so many, among whom are: Carmen Valenti, Catherine Lamberg, Carrie Dobbins, Lori Moon and Nadine Jarmon, Ray Allen, Peter Clark, Joseph Stebbins, Gabrielle Gallerani, Kelly Gardner, Shelly Smith, Kim Winder, and of course many more. And at the National Center for Housing Management in Arlington VA, Mike DeGrandis, Mark Alper, James Waller, John Zeichel, and the whole gang.
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PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C
Introduction
The Public Housing Program is one of HUD's largest national affordable housing programs, serving about 1.2 million families in 14,000 public housing developments in all 50 states, and administered over 3,000 Housing Authorities and Agencies. The Public Housing Capital Fund and HOPE VI Programs are currently budgeted at about $3 billion annually. About $1 billion for maintenance is funded through the Public Housing Operating Fund. Other special Public Housing Programs are accounted for separately. The nation's existing accrued investment in Public Housing is over $90 billion. However, estimates of current outstanding Public Housing Modernization and Maintenance needs exceed $20 billion. The goal of this Handbook is to simplify Public Housing modernization and maintenance, and save time for the busy Public Housing Administrator and Affordable Housing Professional. This Handbook's 750-page Comprehensive Index includes about 17,100 entries and 202,000 references, organizing access to the main sources of regulatory and management control of Public Housing Programs: Statutory and Federal Regulations, most notably in 24 CFR HUD Forms, HUD Handbooks and Guidebooks, and PIH Notices.
All of these sources of regulation and management decisions are indexed. The primary regulations from 24 CFR and 49 CFR (about 400 pages), are reprinted in the front portion of this Handbook, a few pages after this Introduction. The HUD Handbooks and Guidebooks (about 2,280 pages), main HUD forms (about 350 pages), and PIH Notices (about 520 pages), are available for free from HUDCLIPS. All are completely indexed in this Handbook – for a total of about 3,550 HUD pages with over 930,000 words indexed. In this Comprehensive Index, the total number of times a word or phrase appears is on the first line of each index entry. Then the index references are listed individually for each regulatory source shown above. The author welcomes suggestions and input to improve this Handbook, and for future Handbooks. For example, new words to add to the index, additional or changed forms, new regulations, or any other thoughts and suggestions the reader may have. If you would like a Custom Index for your program documents, or have other suggestions for indexing and facilitating HUD Affordable Housing, please contact the author. Please send all suggestions and comments to the author at the email below David Hoicka New Orleans, LA. DavidHoicka@PublicHousing.info
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PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C
How to Use The Comprehensive Index
Following is a sample Index entry: 18 YEARS ....................................... 30
.609 (2); 24 CFR 5: .216; .230 (3); HUD-50058Instr: p2; p14; p15 (3); HUD-9886: p1 (2); 7420.10G Gbk: 5-15 Ex 5-2; 5-18 (2); PIH Notices: 01-15 Impr Integ Hbk (5); .611; p17; p25 (2); 5-30 (2); p26; p27;
12-13 Ex 12-1;
"31" refers to the number of times "18 years" appears in the texts indexed. References are organized according to type of source: 24 CFR (e.g. 24 CFR 5.230), HUD Forms, HUD Handbooks and Guidebooks, and PIH Notices. "(2)", "(3)", and such numbers underlined in the indices, means the indexed word or phrase occurs (2) or (3), (or more) times on that page.
Statistics for Words Appearing in this Index
Words indexed in Public Housing source documents Pages indexed in HUD source documents Index entry words & phrases in this Index Total index references to source documents over 930,000 about 3,550 about 17,100 about 202,000
Certain common words appear on nearly every page of the source documents, appearing at the frequency shown in the following table. Such common individual words were excluded from the printed index. However, where they form a part of an important phrase - e.g. in phrases like “family absence”, “family breakup”, “family characteristic”, “family composition”, “family income”, “single family”, “single family house”, “working family”, etc., these words are included in the indexed.
Common Word
PHA HUD project may assistance property development
Frequency
3,579 2,818 2,431 1,993 1,730 1,622 1,543
Common Word
requirements public date required program must agency
Frequency
1,395 1,365 1,246 1,215 1,139 1,123 1,071
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HUD Public Housing Property Management:
Modernization, Development, Maintenance and Relocation Documents and Forms Indexed
The following HUD Public Housing Modernization, Development, Maintenance and Relocation forms, manuals and notices are indexed in this Handbook and Comprehensive Index. The originals of the HUD documents are available for free download from HUDCLIPS, www.hudclips.org.
1.
# 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Code of Federal Regulations - Sections Indexed:
CFR # 24 CFR 8 (Part) 24 CFR 35 24 CFR 40 24 CFR 41 24 CFR 42 24 CFR 50 24 CFR 51 24 CFR 55 24 CFR 58 24 CFR 70 24 CFR 87 24 CFR 135 24 CFR 902 24 CFR 905 24 CFR 941 24 CFR 943 24 CFR 945 24 CFR 963 24 CFR 964 (Section 320 only) 24 CFR 965 24 CFR 968 24 CFR 969 24 CFR 970 24 CFR 971 CFR Title/Topic Nondiscrimination Based On Handicap Lead-Based Paint Poisoning Prevention Accessibility Standards Accessibility By The Physically Handicapped Displacement, Relocation Assistance Protection And Enhancement Of Environmental Quality Environmental Criteria And Standards Floodplain Management Environmental Review Procedures Volunteers, Davis-Bacon And Hud-Determined Wage Rates New Restrictions On Lobbying Economic Opportunities For Low- And Very LowIncome Persons Public Housing Assessment System (PHAS) Public Housing Capital Fund Program Public Housing Development Public Housing Agency Consortia And Joint Ventures Designated Public Housing Disabled, Elderly Contracting With Resident-Owned Businesses Tenant Participation And Tenant Opportunities PHA-Owned Or Leased Projects Public Housing Modernization Pha-Owned Projects - Continued Operation As LowIncome Housing After Completion Of Debt Service Demolition Or Disposition Of Public Housing Assessment Of Reasonable Revitalization Potential Public Housing
10 # 25 26
PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C CFR # 24 CFR 972 49 CFR 24 CFR Title/Topic Conversion Of Public Housing To Tenant-Based Assistance Uniform Relocation Assistance
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#
HUD Handbooks, Manuals and Guidebooks Indexed:
Handbook ID FH Des Man UFAS 1378.0 4910.1 7417.1 7418.1 7485.1 7485.2 7485.3G Handbook Title/Topic Fair Housing Design Manual Uniform Federal Accessibility Standards Relocation Handbook Minimum Property Standards for Housing Hbk Public Housing Development Handbook Preparation of a Life-cycle Cost Analysis Hbk PIH Comprehensive Improvement Assistance Program (CIAP) Handbook Public Housing Modernization Standards Handbook Comprehensive Grant Program Guidebook Approx Pages 334 65 426 161 423 68 322 162 319
3.
# 1 2 3 4 5 6 7 8
HUD Forms Indexed:
Form # HUD-2516 HUD-2530 HUD-40054 HUD-40055 HUD-40056 HUD-40057 HUD-40058 HUD-40061 Form Title/Topic Contract and Subcontract Activity Previous Participation Certification Claim for Moving and Related Expenses Claim for Actual Reasonable Moving and Related Expenses Claim for Fixed Payment in Lieu of Payment for Actual Moving and Related Expenses Claim for Replacement Housing Payment for 180-Day Homeowner Claim for Rental Assistance or Down Payment Assistance Selection of Most Representative Comparable Replacement Dwelling for Computing a Replacement Housing Payment Claim for Rental or Purchase Assistance Certification for a Drug-Free Workplace Certification of Payments to Influence Federal Transactions Public Housing Assessment System (PHAS) Management
9 10 11 12
HUD-40072 HUD-50070 HUD-50071 HUD-50072
PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C # 13 14 15 16 17 18 19 20 Form # HUD-5087 HUD-51000 HUD-51001 HUD-51002 HUD-51003 HUD-51004 HUD-51915 HUD-51975-A
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21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46
HUD-51971 HUD-51994 HUD-52190-A HUD-52190-B HUD-52190-C HUD-52344 HUD-52396 HUD-52423 HUD-52427 HUD-52481 HUD-52484 HUD-52540 HUD-52580 HUD-52651-A HUD-52820 HUD-52820-C HUD-52825 HUD-52832 HUD-52833 HUD-52834 HUD-52835 HUD-52836 HUD-52837 HUD-52840A HUD-52842 HUD-53001
Form Title/Topic Operations Certification Outline Specification Schedule of Amounts for Contract Payments Periodic Estimate for Partial Payment Schedule of Change Orders Schedule of Materials Stored Summary of Materials Stored Model Form of Agreement Between Owner and Design Professional Contract Provisions Required by Federal Law or Owner Contract with the U.S. Department of Housing and Urban Development Offer of Sale of Real Property Life-Cycle Cost Analysis of Utility Combinations Declaration of Trust (Development Grant Projects) Declaration of Trust (Public Housing Modernization Grant Projects) Declaration of Trust (Indian Housing Modernization Grant Projects) Notice of End of Initial Operating Period Analysis of Proposed Main Construction Contract Notice of Date of Full Availability Actual Development Cost Certificate Cooperation Agreement Development Cost Budget/Cost Statement Project Accounting Data (PAD) Inspection Checklist Site, Design and Cost Report PHA Board Resolution Approving CIAP Budget PHA Approval of CIAP Applicant Certifications CIAP Budget /Progress Report Physical Needs Assessment Management Needs Assessment Five-Year Action Plan Local Government Statement HA Board Resolution Approving Comprehensive Plan or Annual Statement Comprehensive Grant Program (CGP) Annual Statement / Performance and Evaluation Report Comprehensive Grant Program (CGP) Capital Fund Program (CFP) Amendment To The Consolidated Annual Contributions Contract Annual Statement / Performance and Evaluation Report on Replacement Reserve Actual Modernization Cost Certificate
12 # 47 48 49 50 51 52 53 54 55 56 57 58
PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C Form # HUD-53009-A HUD-53012A HUD-53012B HUD-5369 HUD-5369-A HUD-5369-B HUD-5369C HUD-5370 HUD-5370-C HUD-5372 HUD-5378 HUD-92264 Form Title/Topic Comprehensive Improvement Assistance Program (CIAP) Amendment Part A of a Consolidated Annual Contributions Contract Additional Terms and Conditions of a Consolidated Annual Contributions Contract Instructions to Bidders for Contracts Representations, Certifications, and Other Statements of Bidders Instructions to Offerors Non-Construction Certifications and Representations of Offerors NonConstruction Contract General Conditions of the Contract for Construction General Contract Conditions Non-Construction Construction Progress Schedule Public Housing Construction Report Multifamily Summary Appraisal Report
4.
PIH # 04-6 04-5 04-4 04-3 03-33 03-31
PIH Notices Indexed (PIH = Public & Indian Housing):
Topic of PIH Notice Indexed Development Cost Limits – Extension of PIH 2003-8 Mixed Finance Development Operating Subsidies Housing Choice Vouchers for Demolition, Disposition and Conversion of Public Housing Demolition Disposition Processing Requirements – Extension of PIH 2003-9 PIC for Demolition Disposition ADA and Architectural Barriers Act – Updates PIH 2002-01 CapFund.doc Development.exe Development.pdf** att_Development.pdf** ModRehabExtension.doc Demolition.doc SpecialApplicationCenter.doc Demolition.doc FinanceMgtCorrections.doc PH_DevelopmentCosts.exe DavisBacon.doc DavisBaconLaborStandards Attachment Applicability Mod Fin Mod Fin Mod Fin Mod Fin Mod Fin Mod Fin Mod Fin Mod Fin Fin Mod Fin Mod Fin Mod Mod Fin Mod Fin Mod SS8 Multi Mod Fin Mod Fin Fin Mod Mod Fin Mod Fin
03-19 03-09 03-08 03-08 02-26 02-23 01-44 01-38 01-35 01-22 00-48 00-48-A
PHA Modernization, Development, Maintenance & Relocation Vol. 4A: Regulations and Comprehensive Index A-C PIH # 00-47 00-25 00-15 00-08 99-19App1 99-19App2 99-19App3 99-17 99-12 98-28 98-09 97-08 96-56 Topic of PIH Notice Indexed DevelopmentCost.doc DevelopmentCost.doc Development Cost.doc Environment.doc Demolition App 1 Demolition App 2 Demolition App 3 Development Cost.doc Environment.doc Demo, Conversions, Homeownership – SpecialApplicationCenter.doc Environment.doc Environment.doc ModernizationDevelopmentCosts.doc Applicability Mod Fin Fin Mod Fin Mod Multi Fin Mod Mod Fin Mod Fin Mod Fin Fin Mod Multi Fin Mod SS8 Multi Mod Multi Fin Mod Multi Fin Mod Fin Mod
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5.
Note on Spelling in Source Documents
The original source documents come with a wide variety of formats, spellings, and punctuations. For consistency, spelling irregularities, hyphens, etc. in the original sources are retained as-is in the Index. Thus, e.g. the following words, all with about the same meaning, are indexed separately: “childcare”, “child care”, and “child-care” For thoroughness, please check all word and punctuation forms, including apostrophes, hyphens, etc.
Custom Indices. If you would like a Custom Index for your program documents, or have other suggestions for indexing HUD Affordable Housing Regulations, please contact the author David Hoicka at: DavidHoicka@PublicHousing.info.
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Codes of Federal Regulations Most Applicable to Public Housing Modernization, Development and Maintenance from 24 CFR and 49 CFR Summary Table of Contents
24 CFR 8 (Part) Nondiscrimination Based On Handicap ................................................. 31 24 CFR 35 Lead-Based Paint Poisoning Prevention ......................................................... 44 24 CFR 40 Accessibility Standards ................................................................................... 96 24 CFR 41 Accessibility By The Physically Handicapped ............................................... 98 24 CFR 42 Displacement, Relocation Assistance ........................................................... 101 24 CFR 50 Protection And Enhancement Of Environmental Quality ............................ 107 24 CFR 51 Environmental Criteria And Standards ......................................................... 118 24 CFR 55 Floodplain Management ............................................................................... 134 24 CFR 58 Environmental Review Procedures ............................................................... 144 24 CFR 70 Volunteers, Davis-Bacon And Hud-Determined Wage Rates ...................... 167 24 CFR 87 New Restrictions On Lobbying .................................................................... 170 24 CFR 135 Economic Opportunities For Low- And Very Low-Income Persons ......... 179 24 CFR 902 Public Housing Assessment System (PHAS) ............................................. 201 24 CFR 905 Public Housing Capital Fund Program ....................................................... 233 24 CFR 941 Public Housing Development ..................................................................... 240 24 CFR 943 Public Housing Agency Consortia And Joint Ventures .............................. 267 24 CFR 945 Designated Public Housing Disabled, Elderly ............................................ 273 24 CFR 963 Contracting With Resident-Owned Businesses .......................................... 283 24 CFR 964 (Section 320 only) Tenant Participation And Tenant Opportunities .......... 286 24 CFR 965 PHA-Owned Or Leased Projects ................................................................ 287 24 CFR 968 Public Housing Modernization ................................................................... 300 24 CFR 969 Pha-Owned Projects - Continued Operation As Low-Income Housing After Completion Of Debt Service ........................................................................................... 342 24 CFR 970 Demolition Or Disposition Of Public Housing ........................................... 345 24 CFR 971 Assessment Of Reasonable Revitalization Potential Public Housing......... 362 24 CFR 972 Conversion Of Public Housing To Tenant-Based Assistance .................... 370 49 CFR 24 Uniform Relocation Assistance .................................................................... 385
Detailed Table of Contents
24 CFR 8 (Part) Nondiscrimination Based On Handicap ................................................. 31 Subpart A_General Provisions ...................................................................................... 31 Sec. 8.1 Purpose. ....................................................................................................... 31 Sec. 8.2 Applicability. ............................................................................................... 32 Sec. 8.3 Definitions. .................................................................................................. 32 Subpart C_Program Accessibility ................................................................................. 36
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Sec. 8.20 General requirement concerning program accessibility. ........................... 36 Sec. 8.21 Non-housing facilities. .............................................................................. 36 Sec. 8.22 New construction--housing facilities. ........................................................ 37 Sec. 8.23 Alterations of existing housing facilities. .................................................. 38 Sec. 8.24 Existing housing programs. ....................................................................... 38 Sec. 8.25 Public housing and multi-family Indian housing. ..................................... 39 Sec. 8.26 Distribution of accessible dwelling units. ................................................. 40 Sec. 8.27 Occupancy of accessible dwelling units. ................................................... 41 Sec. 8.28 Housing certificate and housing voucher programs. ................................. 41 Sec. 8.29 Homeownership programs (sections 235(i) and 235(j), Turnkey III and Indian housing mutual self-help programs). ............................................................. 41 Sec. 8.30 Rental rehabilitation program. ................................................................... 42 Sec. 8.31 Historic properties. .................................................................................... 42 Sec. 8.32 Accessibility standards. ............................................................................. 42 Sec. 8.33 Housing adjustments. ................................................................................ 43 Subpart D_Enforcement ................................................................................................ 43 Sec. 8.50 Assurances required................................................................................... 43 24 CFR 35 Lead-Based Paint Poisoning Prevention ......................................................... 44 Subpart A_Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards Upon Sale or Lease of Residential Property ................................................................. 46 Sec. 35.80 Purpose. ................................................................................................... 46 Sec. 35.82 Scope and applicability............................................................................ 47 Sec. 35.84 Effective dates. ........................................................................................ 47 Sec. 35.86 Definitions. .............................................................................................. 47 Sec. 35.88 Disclosure requirements for sellers and lessors....................................... 49 Sec. 35.90 Opportunity to conduct an evaluation. .................................................... 49 Sec. 35.92 Certification and acknowledgment of disclosure. ................................... 50 Sec. 35.94 Agent responsibilities. ............................................................................. 51 Sec. 35.96 Enforcement. ........................................................................................... 52 Sec. 35.98 Impact on State and local requirements. .................................................. 52 Subpart B_General Lead-Based Paint Requirements and Definitions for All Programs. ....................................................................................................................................... 52 Sec. 35.100 Purpose and applicability. ..................................................................... 52 Sec. 35.105 Effective dates. ...................................................................................... 54 Sec. 35.106 Information collection requirements. .................................................... 54 Sec. 35.110 Definitions. ............................................................................................ 54 Sec. 35.115 Exemptions. ........................................................................................... 59 Sec. 35.120 Options. ................................................................................................. 61 Sec. 35.125 Notice of evaluation and hazard reduction activities............................. 61 Sec. 35.130 Lead hazard information pamphlet. ....................................................... 62 Sec. 35.135 Use of paint containing lead. ................................................................. 62 Sec. 35.140 Prohibited methods of paint removal. ................................................... 62 Sec. 35.145 Compliance with Federal laws and authorities. ..................................... 63 Sec. 35.150 Compliance with other State, tribal, and local laws. ............................. 63 Sec. 35.155 Minimum requirements. ........................................................................ 63 Sec. 35.160 Waivers. ................................................................................................. 63
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Sec. 35.165 Prior evaluation or hazard reduction...................................................... 64 Sec. 35.170 Noncompliance with the requirements of subparts B through R of this part. ............................................................................................................................ 65 Sec. 35.175 Records. ................................................................................................. 65 Subpart C_Disposition of Residential Property Owned by a Federal Agency Other Than HUD ..................................................................................................................... 65 Sec. 35.200 Purpose and applicability. ...................................................................... 65 Sec. 35.205 Definitions and other general requirements. .......................................... 65 Sec. 35.210 Disposition of residential property constructed before 1960. ................ 65 Sec. 35.215 Disposition of residential property constructed after 1959 and before 1978. .......................................................................................................................... 66 Subpart D_Project-Based Assistance Provided by a Federal Agency Other Than HUD ....................................................................................................................................... 66 Sec. 35.300 Purpose and applicability. ...................................................................... 66 Sec. 35.305 Definitions and other general requirements. .......................................... 66 Sec. 35.310 Notices and pamphlet. ........................................................................... 66 Sec. 35.315 Risk assessment. .................................................................................... 66 Sec. 35.320 Hazard reduction. ................................................................................... 66 Sec. 35.325 Child with an environmental intervention blood lead level................... 66 Subpart E [Reserved] ..................................................................................................... 66 Subpart F_HUD-Owned Single Family Property.......................................................... 66 Sec. 35.500 Purpose and applicability. ...................................................................... 67 Sec. 35.505 Definitions and other general requirements. .......................................... 67 Sec. 35.510 Required procedures. ............................................................................. 67 Subpart G_Multifamily Mortgage Insurance ................................................................ 67 Sec. 35.600 Purpose and applicability. ...................................................................... 67 Sec. 35.605 Definitions and other general requirements. .......................................... 67 Sec. 35.610 Exemption. ............................................................................................. 67 Sec. 35.615 Notices and pamphlet. ........................................................................... 67 Sec. 35.620 Multifamily insured property constructed before 1960. ........................ 67 Sec. 35.625 Multifamily insured property constructed after 1959 and before 1978. 68 Sec. 35.630 Conversions and major rehabilitations. ................................................. 68 Subpart H_Project-Based Rental Assistance ................................................................. 68 Sec. 35.700 Purpose and applicability. ...................................................................... 68 Sec. 35.705 Definitions and other general requirements. .......................................... 69 Sec. 35.710 Notices and pamphlet. ........................................................................... 69 Sec. 35.715 Multifamily properties receiving more than $5,000 per unit. ................ 69 Sec. 35.720 Multifamily properties receiving up to $5,000 per unit, and single family properties. ....................................................................................................... 70 Sec. 35.725 Section 8 Rent adjustments. ................................................................... 70 Sec. 35.730 Child with an environmental intervention blood lead level................... 70 Subpart I_HUD-Owned and Mortgagee-in-Possession Multifamily Property ............. 71 Sec. 35.800 Purpose and applicability. ...................................................................... 71 Sec. 35.805 Definitions and other general requirements. .......................................... 72 Sec. 35.810 Notices and pamphlet. ........................................................................... 72 Sec. 35.815 Evaluation. ............................................................................................. 72
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Sec. 35.820 Interim controls. .................................................................................... 72 Sec. 35.825 Ongoing lead-based paint maintenance and reevaluation. .................... 72 Sec. 35.830 Child with an environmental intervention blood lead level. ................. 73 Subpart J_Rehabilitation ............................................................................................... 74 Sec. 35.900 Purpose and applicability. ..................................................................... 74 Sec. 35.905 Definitions and other general requirements. ......................................... 74 Sec. 35.910 Notices and pamphlet. ........................................................................... 74 Sec. 35.915 Calculating rehabilitation costs, except for the CILP Program. ............ 75 Sec. 35.920 Calculating rehabilitation costs for the Flexible Subsidy- .................... 75 Sec. 35.925 Examples of determining applicable requirements. .............................. 75 Sec. 35.930 Evaluation and hazard reduction requirements. .................................... 76 Sec. 35.935 Ongoing lead-based paint maintenance activities. ................................ 76 Sec. 35.940 Special requirements for insular areas. .................................................. 77 Subpart K_Acquisition, Leasing, Support Services, or Operation ................................ 77 Sec. 35.1000 Purpose and applicability. ................................................................... 77 Sec. 35.1005 Definitions and other general requirements. ....................................... 78 Sec. 35.1010 Notices and pamphlet. ......................................................................... 78 Sec. 35.1015 Visual assessment, paint stabilization, and maintenance. ................... 78 Sec. 35.1020 Funding for evaluation and hazard reduction. ..................................... 78 Subpart L_Public Housing Programs ............................................................................ 79 Sec. 35.1100 Purpose and applicability. ................................................................... 79 Sec. 35.1105 Definitions and other general requirements. ....................................... 79 Sec. 35.1110 Notices and pamphlet. ......................................................................... 79 Sec. 35.1115 Evaluation. ........................................................................................... 79 Sec. 35.1120 Hazard reduction. ................................................................................ 79 Sec. 35.1125 Evaluation and hazard reduction before acquisition and development. ................................................................................................................................... 80 Sec. 35.1130 Child with an environmental intervention blood lead level. ............... 80 Sec. 35.1135 Eligible costs. ...................................................................................... 81 Sec. 35.1140 Insurance coverage. ............................................................................. 82 Subpart M_Tenant-Based Rental Assistance ................................................................ 82 Sec. 35.1200 Purpose and applicability. ................................................................... 82 Sec. 35.1205 Definitions and other general requirements. ....................................... 83 Sec. 35.1210 Notices and pamphlet. ......................................................................... 83 Sec. 35.1215 Activities at initial and periodic inspection. ........................................ 83 Sec. 35.1220 Ongoing lead-based paint maintenance activities. .............................. 83 Sec. 35.1225 Child with an environmental intervention blood lead level. ............... 83 Subpart R_Methods and Standards for Lead-Paint Hazard Evaluation and Hazard Reduction Activities ...................................................................................................... 84 Sec. 35.1300 Purpose and applicability. ................................................................... 85 Sec. 35.1305 Definitions and other general requirements. ....................................... 85 Sec. 35.1310 References. .......................................................................................... 85 Sec. 35.1315 Collection and laboratory analysis of samples. ................................... 85 Sec. 35.1320 Lead-based paint inspections and risk assessments............................. 85 Sec. 35.1325 Abatement............................................................................................ 86 Sec. 35.1330 Interim controls. .................................................................................. 86
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Sec. 35.1335 Standard treatments. ............................................................................ 89 Sec. 35.1340 Clearance. ............................................................................................ 89 Sec. 35.1345 Occupant protection and worksite preparation. ................................... 91 Sec. 35.1350 Safe work practices. ............................................................................. 92 Sec. 35.1355 Ongoing lead-based paint maintenance and reevaluation activities. ... 92 24 CFR 40 Accessibility Standards ................................................................................... 96 Sec. 40.1 Purpose. ......................................................................................................... 96 Sec. 40.2 Definition of ``residential structure''. ............................................................. 96 Sec. 40.3 Applicability. ................................................................................................. 96 Sec. 40.4 Standards........................................................................................................ 97 Sec. 40.5 [Reserved] ...................................................................................................... 97 Sec. 40.6 Records. ......................................................................................................... 97 Sec. 40.7 Availability of Accessibility Standards. ........................................................ 97 24 CFR 41 Accessibility By The Physically Handicapped ............................................... 98 Sec. 41.1 Applicability. ................................................................................................. 98 Sec. 41.2 Definitions. .................................................................................................... 98 Sec. 41.3 Assurance and declaration required. .............................................................. 98 Sec. 41.4 Waiver or modification of standards. ............................................................ 99 Sec. 41.5 Achieving compliance. .................................................................................. 99 Sec. 41.6 Matters involving the Architectural and Transportation Barriers Compliance Board. .......................................................................................................................... 100 24 CFR 42 Displacement, Relocation Assistance ........................................................... 101 Subpart A_General ...................................................................................................... 101 Sec. 42.1 Applicable rules. ...................................................................................... 101 Subpart B [Reserved] .................................................................................................. 102 Subpart C_Requirements Under Section 104(d) of Housing and Community Development Act of 1974 ........................................................................................... 102 Sec. 42.301 Applicability. ....................................................................................... 102 Sec. 42.305 Definitions. .......................................................................................... 102 Sec. 42.325 Residential antidisplacement and relocation assistance plan............... 103 Sec. 42.350 Relocation assistance for displaced persons. ....................................... 103 Sec. 42.375 One-for-one replacement of lower-income dwelling units. ................. 104 Sec. 42.390 Appeals. ............................................................................................... 106 24 CFR 50 Protection And Enhancement Of Environmental Quality ............................ 107 Subpart A_General: Federal Laws and Authorities..................................................... 107 Sec. 50.1 Purpose, authority, and applicability. ...................................................... 107 Sec. 50.2 Terms and abbreviations. ......................................................................... 108 Sec. 50.3 Environmental policy............................................................................... 108 Sec. 50.4 Related Federal laws and authorities. ...................................................... 109 Subpart B_General Policy: Responsibilities and Program Coverage.......................... 110 Sec. 50.10 Basic environmental responsibility........................................................ 110 Sec. 50.11 Responsibility of the HUD approving official....................................... 110 Subpart C_General Policy: Decision Points ................................................................ 111 Sec. 50.16 Decision points for policy actions. ........................................................ 111 Sec. 50.17 Decision points for projects. .................................................................. 111 Subpart D_General Policy: Environmental Review Procedures ................................. 112
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Sec. 50.18 General. ................................................................................................. 112 Sec. 50.19 Categorical exclusions not subject to the Federal laws and authorities cited in SEC. 50.4. ................................................................................................... 112 Sec. 50.20 Categorical exclusions subject to the Federal laws and authorities cited in SEC. 50.4................................................................................................................. 114 Sec. 50.21 Aggregation. .......................................................................................... 115 Sec. 50.22 Environmental management and monitoring. ....................................... 115 Sec. 50.23 Public participation. ............................................................................... 115 Sec. 50.24 HUD review of another agency's EIS. ................................................... 115 Subpart E_Environmental Assessments and Related Reviews ................................... 116 Sec. 50.31 The EA................................................................................................... 116 Sec. 50.32 Responsibility for environmental processing. ....................................... 116 Sec. 50.33 Action resulting from the assessment. ................................................... 116 Sec. 50.34 Time delays for exceptional circumstances. .......................................... 116 Sec. 50.35 Use of prior environmental assessments. .............................................. 117 Sec. 50.36 Updating of environmental reviews. ..................................................... 117 Subpart F_Environmental Impact Statements ............................................................. 117 Sec. 50.41 EIS policy. ............................................................................................. 117 Sec. 50.42 Cases when an EIS is required. ............................................................. 117 Sec. 50.43 Emergencies. ......................................................................................... 117 24 CFR 51 Environmental Criteria And Standards ......................................................... 118 Subpart A_General Provisions .................................................................................... 118 Sec. 51.1 Purpose. ................................................................................................... 118 Sec. 51.2 Authority.................................................................................................. 118 Sec. 51.3 Responsibilities........................................................................................ 119 Sec. 51.4 Program coverage. ................................................................................... 119 Subpart B_Noise Abatement and Control ................................................................... 119 Sec. 51.100 Purpose and authority. ......................................................................... 119 Sec. 51.101 General policy. .................................................................................... 119 Sec. 51.102 Responsibilities.................................................................................... 121 Sec. 51.103 Criteria and standards. ......................................................................... 121 Sec. 51.104 Special requirements. .......................................................................... 122 Sec. 51.105 Exceptions. .......................................................................................... 123 Sec. 51.106 Implementation. ................................................................................... 123 Subpart C_Siting of HUD-Assisted Projects Near Hazardous Operations Handling Conventional Fuels or Chemicals of an Explosive or Flammable Nature .................. 126 Sec. 51.200 Purpose. ............................................................................................... 126 Sec. 51.201 Definitions. .......................................................................................... 126 Sec. 51.202 Approval of HUD-assisted projects..................................................... 127 Sec. 51.203 Safety standards. .................................................................................. 127 Sec. 51.204 HUD-assisted hazardous facilities. ...................................................... 128 Sec. 51.205 Mitigating measures. ........................................................................... 128 Sec. 51.206 Implementation. ................................................................................... 128 Sec. 51.207 Special circumstances. ......................................................................... 128 Sec. 51.208 Reservation of administrative and legal rights. ................................... 128
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Subpart D_Siting of HUD Assisted Projects in Runway Clear Zones at Civil Airports and Clear Zones and Accident Potential Zones at Military Airfields ......................... 132 Sec. 51.300 Purpose. ............................................................................................... 132 Sec. 51.301 Definitions. .......................................................................................... 132 Sec. 51.302 Coverage. ............................................................................................. 132 Sec. 51.303 General policy. ..................................................................................... 133 Sec. 51.304 Responsibilities. ................................................................................... 133 Sec. 51.305 Implementation. ................................................................................... 133 24 CFR 55 Floodplain Management ............................................................................... 134 Subpart A_General ...................................................................................................... 135 Sec. 55.1 Purpose and basic responsibility. ............................................................. 135 Sec. 55.2 Terminology. ........................................................................................... 136 Sec. 55.3 Assignment of responsibilities. ................................................................ 137 Subpart B_Application of Executive Order on Floodplain Management ................... 137 Sec. 55.10 Environmental review procedures under 24 CFR parts 50 and 58. ....... 137 Sec. 55.11 Applicability of subpart C decision making process. ............................ 138 Sec. 55.12 Inapplicability of 24 CFR part 55 to certain categories of proposed actions. ..................................................................................................................... 138 Subpart C_Procedures for Making Determinations on Floodplain Management ....... 140 Sec. 55.20 Decision making process. ...................................................................... 140 Sec. 55.21 Notification of floodplain hazard........................................................... 141 Sec. 55.22 Conveyance restrictions for the disposition of multifamily real property. ................................................................................................................................. 141 Sec. 55.23 [Reserved] .............................................................................................. 142 Sec. 55.24 Aggregation. .......................................................................................... 142 Sec. 55.25 Areawide compliance. ........................................................................... 142 Sec. 55.26 Adoption of another agency's review under the executive orders. ........ 143 Sec. 55.27 Documentation. ...................................................................................... 143 24 CFR 58 Environmental Review Procedures ............................................................... 144 Subpart A_Purpose, Legal Authority, Federal Laws and Authorities ......................... 145 Sec. 58.1 Purpose and applicability. ........................................................................ 145 Sec. 58.2 Terms, abbreviations and definitions. ...................................................... 147 Sec. 58.4 Assumption authority............................................................................... 149 Sec. 58.5 Related Federal laws and authorities. ...................................................... 149 Sec. 58.6 Other requirements. ................................................................................. 151 Subpart B_General Policy: Responsibilities of Responsible Entities ......................... 152 Sec. 58.10 Basic environmental responsibility........................................................ 152 Sec. 58.11 Legal capacity and performance. ........................................................... 152 Sec. 58.12 Technical and administrative capacity................................................... 152 Sec. 58.13 Responsibilities of the certifying officer. .............................................. 152 Sec. 58.14 Interaction with State, Federal and non-Federal entities. ...................... 153 Sec. 58.15 Tiering.................................................................................................... 153 Sec. 58.17 [Reserved] .............................................................................................. 153 Sec. 58.18 Responsibilities of States assuming HUD environmental responsibilities. ................................................................................................................................. 153 Subpart C_General Policy: Environmental Review Procedures ................................. 154
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Sec. 58.21 Time periods. ......................................................................................... 154 Sec. 58.22 Limitations on activities pending clearance. ......................................... 154 Sec. 58.23 Financial assistance for environmental review...................................... 155 Subpart D_Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification ....................................................................... 155 Sec. 58.30 Environmental review process. ............................................................. 155 Sec. 58.32 Project aggregation. ............................................................................... 155 Sec. 58.33 Emergencies. ......................................................................................... 156 Sec. 58.34 Exempt activities. .................................................................................. 156 Sec. 58.35 Categorical exclusions. .......................................................................... 157 Sec. 58.36 Environmental assessments. .................................................................. 158 Sec. 58.37 Environmental impact statement determinations. ................................. 158 Sec. 58.38 Environmental review record. ............................................................... 159 Subpart E_Environmental Review Process: Environmental Assessments (EA's) ...... 159 Sec. 58.40 Preparing the environmental assessment. .............................................. 159 Sec. 58.43 Dissemination and/or publication of the findings of no significant impact. ................................................................................................................................. 160 Sec. 58.45 Public comment periods. ....................................................................... 161 Sec. 58.46 Time delays for exceptional circumstances. .......................................... 161 Sec. 58.47 Re-evaluation of environmental assessments and other environmental findings. ................................................................................................................... 161 Subpart F_Environmental Review Process: Environmental Impact Statement Determinations ............................................................................................................ 162 Sec. 58.52 Adoption of other agencies' EISs. ......................................................... 162 Sec. 58.53 Use of prior environmental impact statements. ..................................... 162 Subpart G_Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements ....................................................... 162 Sec. 58.55 Notice of intent to prepare an EIS. ........................................................ 163 Sec. 58.56 Scoping process. .................................................................................... 163 Sec. 58.57 Lead agency designation. ...................................................................... 163 Sec. 58.59 Public hearings and meetings. ............................................................... 163 Sec. 58.60 Preparation and filing of environmental impact statements. ................. 163 Subpart H_Release of Funds for Particular Projects ................................................... 164 Sec. 58.70 Notice of intent to request release of funds. .......................................... 164 Sec. 58.71 Request for release of funds and certification. ...................................... 164 Sec. 58.72 HUD or State actions on RROFs and certifications. ............................. 164 Sec. 58.73 Objections to release of funds. .............................................................. 165 Sec. 58.74 Time for objecting. ................................................................................ 165 Sec. 58.75 Permissible bases for objections. ........................................................... 165 Sec. 58.76 Procedure for objections. ....................................................................... 165 Sec. 58.77 Effect of approval of certification. ........................................................ 165 24 CFR 70 Volunteers, Davis-Bacon And Hud-Determined Wage Rates ...................... 167 Sec. 70.1 Purpose and authority. ................................................................................. 167 Sec. 70.2 Applicability. ............................................................................................... 168 Sec. 70.3 Definitions. .................................................................................................. 168 Sec. 70.4 Procedure for implementing prevailing wage exemptions for volunteers... 169
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Sec. 70.5 Procedure for obtaining HUD waiver of prevailing wage rates for volunteers. ..................................................................................................................................... 169 24 CFR 87 New Restrictions On Lobbying .................................................................... 170 Subpart A_General ...................................................................................................... 171 Sec. 87.100 Conditions on use of funds. ................................................................. 171 Sec. 87.105 Definitions. .......................................................................................... 171 Sec. 87.110 Certification and disclosure. ................................................................ 173 Subpart B_Activities by Own Employees ................................................................... 174 Sec. 87.200 Agency and legislative liaison. ............................................................ 174 Sec. 87.205 Professional and technical services. .................................................... 174 Sec. 87.210 Reporting. ............................................................................................ 175 Subpart C_Activities by Other Than Own Employees................................................ 175 Sec. 87.300 Professional and technical services. .................................................... 175 Subpart D_Penalties and Enforcement ........................................................................ 176 Sec. 87.400 Penalties. .............................................................................................. 176 Sec. 87.405 Penalty procedures. .............................................................................. 177 Sec. 87.410 Enforcement. ........................................................................................ 177 Subpart E_Exemptions ................................................................................................ 177 Sec. 87.500 Secretary of Defense. ........................................................................... 177 Subpart F_Agency Reports.......................................................................................... 177 Sec. 87.600 Semi-annual compilation. .................................................................... 177 Sec. 87.605 Inspector General report. ..................................................................... 178 24 CFR 135 Economic Opportunities For Low- And Very Low-Income Persons ......... 179 Subpart A_General Provisions .................................................................................... 180 Sec. 135.1 Purpose. ................................................................................................. 180 Sec. 135.2 Effective date of regulation. .................................................................. 180 Sec. 135.3 Applicability. ......................................................................................... 180 Sec. 135.5 Definitions. ............................................................................................ 181 Sec. 135.7 Delegation of authority. ......................................................................... 185 Sec. 135.9 Requirements applicable to HUD NOFAs for section 3 covered programs. ................................................................................................................. 185 Sec. 135.11 Other laws governing training, employment, and contracting. ........... 185 Subpart B_Economic Opportunities for Section 3 Residents and Section 3 Business Concerns ...................................................................................................................... 186 Sec. 135.30 Numerical goals for meeting the greatest extent feasible requirement. ................................................................................................................................. 186 Sec. 135.32 Responsibilities of the recipient........................................................... 188 Sec. 135.34 Preference for section 3 residents in training and employment opportunities. ........................................................................................................... 189 Sec. 135.36 Preference for section 3 business concerns in contracting opportunities. ................................................................................................................................. 189 Sec. 135.38 Section 3 clause. .................................................................................. 190 Sec. 135.40 Providing other economic opportunities. ............................................. 191 Subpart C [Reserved] .................................................................................................. 192 Subpart D_Complaint and Compliance Review.......................................................... 192 Sec. 135.70 General. ................................................................................................ 192
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Sec. 135.72 Cooperation in achieving compliance. ................................................ 192 Sec. 135.74 Section 3 compliance review procedures. ........................................... 193 Sec. 135.76 Filing and processing complaints. ....................................................... 193 Subpart E_Reporting and Recordkeeping ................................................................... 195 Sec. 135.90 Reporting. ............................................................................................ 195 Sec. 135.92 Recordkeeping and access to records. ................................................. 196 24 CFR 902 Public Housing Assessment System (PHAS) ............................................. 201 Subpart A_General Provisions .................................................................................... 202 Sec. 902.1 Purpose and general description. ........................................................... 202 Sec. 902.3 Scope. .................................................................................................... 202 Sec. 902.5 Applicability. ......................................................................................... 202 Sec. 902.7 Definitions. ............................................................................................ 203 Sec. 902.9 Frequency of PHAS scoring for small PHAs. ....................................... 204 Subpart B_PHAS Indicator #1: Physical Condition ................................................... 205 Sec. 902.20 Physical condition assessment. ............................................................ 205 Sec. 902.23 Physical condition standards for public housing--decent, safe, and sanitary housing in good repair (DSS/GR). ............................................................ 205 Sec. 902.24 Physical inspection of PHA properties. ............................................... 207 Sec. 902.25 Physical condition scoring and thresholds. ......................................... 209 Sec. 902.26 Physical Inspection Report. ................................................................. 212 Sec. 902.27 Physical condition portion of total PHAS points. ............................... 212 Subpart C_PHAS Indicator #2: Financial Condition .................................................. 212 Sec. 902.30 Financial condition assessment. .......................................................... 212 Sec. 902.33 Financial reporting requirements. ........................................................ 212 Sec. 902.35 Financial condition scoring and thresholds. ........................................ 213 Sec. 902.37 Financial condition portion of total PHAS points. .............................. 214 Subpart D_PHAS Indicator #3: Management Operations .......................................... 214 Sec. 902.40 Management operations assessment. ................................................... 214 Sec. 902.43 Management operations performance standards. ................................ 214 Sec. 902.45 Management operations scoring and thresholds.................................. 216 Sec. 902.47 Management operations portion of total PHAS points........................ 216 Subpart E_PHAS Indicator #4: Resident Service and Satisfaction............................. 217 Sec. 902.50 Resident service and satisfaction assessment. ..................................... 217 Sec. 902.51 Updating of public housing unit address information. ........................ 217 Sec. 902.52 Distribution of survey to residents. ..................................................... 218 Sec. 902.53 Resident service and satisfaction scoring and thresholds. ................... 218 Sec. 902.55 Resident service and satisfaction portion of total PHAS points. ......... 219 Subpart F_PHAS Scoring............................................................................................ 219 Sec. 902.60 Data collection. .................................................................................... 219 Sec. 902.63 PHAS scoring. ..................................................................................... 220 Sec. 902.67 Score and designation status. ............................................................... 221 Sec. 902.68 Technical review of results of PHAS Indicators #1 or #4. .................. 222 Sec. 902.69 PHA right of petition and appeal. ........................................................ 224 Subpart G_PHAS Incentives and Remedies ............................................................... 225 Sec. 902.71 Incentives for high performers. ........................................................... 225 Sec. 902.73 Referral to an Area HUB/Program Center. ......................................... 226
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Sec. 902.75 Referral to a Troubled Agency Recovery Center (TARC). ................. 227 Sec. 902.77 Referral to the Departmental Enforcement Center (DEC). ................. 229 Sec. 902.79 Substantial default. .............................................................................. 230 Sec. 902.83 Interventions. ....................................................................................... 231 Sec. 902.85 Resident petitions for remedial action. ................................................ 232 24 CFR 905 Public Housing Capital Fund Program ....................................................... 233 Sec. 905.10 Capital Fund formula (CFF). ................................................................... 233 Sec. 905.120 Penalties for slow obligation or expenditure of CFP assistance. ........... 239 24 CFR 941 Public Housing Development ..................................................................... 240 Subpart A_General ...................................................................................................... 241 Sec. 941.101 Purpose and scope.............................................................................. 241 Sec. 941.102 Development methods and funding. .................................................. 241 Sec. 941.103 Definitions. ........................................................................................ 242 Subpart B_PHA Eligibility and Program Requirements ............................................. 244 Sec. 941.201 PHA eligibility. .................................................................................. 244 Sec. 941.202 Site and neighborhood standards. ...................................................... 244 Sec. 941.203 Design and construction standards. ................................................... 245 Sec. 941.205 PHA contracts. ................................................................................... 246 Sec. 941.207 Displacement, relocation, and acquisition. ........................................ 246 Sec. 941.208 Other Federal requirements. .............................................................. 249 Sec. 941.209 Audit. ................................................................................................. 249 Subpart C_Application and Proposal .......................................................................... 249 Sec. 941.301 Application. ....................................................................................... 249 Sec. 941.302 Annual contributions contract; drawdowns and advances................. 250 Sec. 941.303 Site acquisition proposal. ................................................................... 250 Sec. 941.304 Full proposal content. ........................................................................ 251 Sec. 941.305 Technical processing and approval. ................................................... 252 Sec. 941.306 Maximum project cost. ...................................................................... 252 Subpart D_Project Development ................................................................................. 254 Sec. 941.401 Site and property acquisition. ............................................................ 254 Sec. 941.402 Project design and construction. ........................................................ 254 Sec. 941.403 Acceptance of work and contract settlement. .................................... 255 Sec. 941.404 Completion of development. ............................................................. 255 Subpart E_Performance Review.................................................................................. 256 Sec. 941.501 HUD review of PHA performance; sanctions. .................................. 256 Subpart F_Public/Private Partnerships for the Mixed Finance Development of Public Housing Units .............................................................................................................. 258 Sec. 941.600 Purpose. ............................................................................................. 258 Sec. 941.602 Applicability of other requirements. .................................................. 258 Sec. 941.604 Definitions. ........................................................................................ 259 Sec. 941.606 Proposal. ............................................................................................ 260 Sec. 941.608 Technical processing and approval. ................................................... 262 Sec. 941.610 Evidentiary materials and other documents. ...................................... 263 Sec. 941.612 Disbursement of grant funds. ............................................................. 265 Sec. 941.614 HUD monitoring and review. ............................................................ 267 Sec. 941.616 Sanctions. ........................................................................................... 267
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24 CFR 943 Public Housing Agency Consortia And Joint Ventures ............................. 267 Subpart A_General ...................................................................................................... 268 Sec. 943.100 What is the purpose of this part? ....................................................... 268 Subpart B_Consortia ................................................................................................... 268 Sec. 943.115 What programs are covered under this subpart? ............................... 268 Sec. 943.118 What is a consortium? ....................................................................... 268 Sec. 943.120 What programs of a PHA are included in a consortium's functions? 269 Sec. 943.122 How is a consortium organized? ....................................................... 269 Sec. 943.124 What elements must a consortium agreement contain? .................... 269 Sec. 943.126 What is the relationship between HUD and a consortium? ............... 270 Sec. 943.128 How does a consortium carry out planning and reporting functions? ................................................................................................................................. 270 Sec. 943.130 What are the responsibilities of participating PHAs? ........................ 270 Subpart C_Subsidiaries, Affiliates, Joint Ventures in Public Housing ....................... 271 Sec. 943.140 What programs and activities are covered by this subpart? .............. 271 Sec. 943.142 In what types of operating organizations may a PHA participate? ... 271 Sec. 943.144 What financial impact do operations of a subsidiary, affiliate, or joint venture have on a PHA? .......................................................................................... 271 Sec. 943.146 What impact does the use of a subsidiary, affiliate, or joint venture have on financial accountability to HUD and the Federal government? ................ 271 Sec. 943.148 What procurement standards apply to PHAs selecting partners for a joint venture? ........................................................................................................... 271 Sec. 943.150 What procurement standards apply to a PHA's joint venture partner? ................................................................................................................................. 272 Sec. 943.151 What procurement standards apply to a joint venture itself? ............ 272 24 CFR 945 Designated Public Housing Disabled, Elderly............................................ 273 Subpart A_General ...................................................................................................... 273 Sec. 945.101 Purpose. ............................................................................................. 273 Sec. 945.103 General policies. ................................................................................ 273 Sec. 945.105 Definitions. ........................................................................................ 274 Subpart B_Application and Approval Procedures ...................................................... 276 Sec. 945.201 Approval to designate housing. ......................................................... 276 Sec. 945.203 Allocation plan. ................................................................................. 276 Sec. 945.205 Designated housing for disabled families. ......................................... 280 Subpart C_Operating Designated Housing ................................................................. 282 Sec. 945.301 General requirements......................................................................... 282 Sec. 945.303 Requirements governing occupancy in designated housing. ............. 282 24 CFR 963 Contracting With Resident-Owned Businesses .......................................... 283 Subpart A_General ...................................................................................................... 283 Sec. 963.1 Purpose. ................................................................................................. 283 Sec. 963.3 Applicability. ......................................................................................... 284 Sec. 963.5 Definitions. ............................................................................................ 284 Subpart B_Contracting With Resident-Owned Businesses ........................................ 285 Sec. 963.10 Eligible resident-owned businesses. .................................................... 285 Sec. 963.12 Alternative procurement process. ........................................................ 285 24 CFR 964 (Section 320 only) Tenant Participation And Tenant Opportunities .......... 286
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Sec. 964.320 HUD Policy on training, employment, contracting and subcontracting of public housing residents. ............................................................................................. 286 24 CFR 965 PHA-Owned Or Leased Projects ................................................................ 287 Subpart A_Preemption of State Prevailing Wage Requirements ................................ 288 Sec. 965.101 Preemption of State prevailing wage requirements. .......................... 288 Subpart B_Required Insurance Coverage ................................................................... 289 Sec. 965.201 Purpose and applicability. .................................................................. 289 Sec. 965.205 Qualified PHA-owned insurance entity. ............................................ 289 Sec. 965.215 Lead-based paint liability insurance coverage. .................................. 291 Subpart C_Energy Audits and Energy Conservation Measures .................................. 292 Sec. 965.301 Purpose and applicability. .................................................................. 292 Sec. 965.302 Requirements for energy audits. ........................................................ 293 Sec. 965.303 [Reserved] .......................................................................................... 293 Sec. 965.304 Order of funding. ............................................................................... 293 Sec. 965.305 Funding. ............................................................................................. 293 Sec. 965.306 Energy conservation equipment and practices. ................................. 293 Sec. 965.307 Compliance schedule. ........................................................................ 293 Sec. 965.308 Energy performance contracts. .......................................................... 293 Subpart D_Individual Metering of Utilities for Existing PHA-Owned Projects ......... 294 Sec. 965.401 Individually metered utilities. ............................................................ 294 Sec. 965.402 Benefit/cost analysis. ......................................................................... 294 Sec. 965.403 Funding. ............................................................................................. 294 Sec. 965.404 Order of conversion. .......................................................................... 294 Sec. 965.405 Actions affecting residents. ............................................................... 295 Sec. 965.406 Benefit/cost analysis for similar projects. .......................................... 295 Sec. 965.407 Reevaluations of mastermeter systems. ............................................. 295 Subpart E_Resident Allowances for Utilities .............................................................. 295 Sec. 965.501 Applicability. ..................................................................................... 296 Sec. 965.502 Establishment of utility allowances by PHAs. .................................. 296 Sec. 965.503 Categories for establishment of allowances. ..................................... 296 Sec. 965.504 Period for which allowances are established. .................................... 296 Sec. 965.505 Standards for allowances for utilities. ............................................... 297 Sec. 965.506 Surcharges for excess consumption of PHA-furnished utilities. ....... 297 Sec. 965.507 Review and revision of allowances. .................................................. 298 Sec. 965.508 Individual relief. ................................................................................ 298 Subpart F_Physical Condition Standards and Physical Inspection Requirements ...... 298 Sec. 965.601 Physical condition standards; physical inspection requirements. ...... 298 Subpart G [Reserved] .................................................................................................. 299 Subpart H_Lead-Based Paint Poisoning Prevention ................................................... 299 Sec. 965.701 Lead-based paint poisoning prevention. ............................................ 299 Subpart I_Fire Safety ................................................................................................... 299 Sec. 965.800 Applicability. ..................................................................................... 299 Sec. 965.805 Smoke detectors. ................................................................................ 299 24 CFR 968 Public Housing Modernization ................................................................... 300 Subpart A_General ...................................................................................................... 301 Sec. 968.101 Purpose and applicability. .................................................................. 301
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Sec. 968.102 Special requirements for Turnkey III developments. ........................ 302 Sec. 968.103 Allocation of funds under section 14................................................. 302 Sec. 968.104 Reserve for emergencies and disasters. ............................................. 308 Sec. 968.105 Definitions. ........................................................................................ 309 Sec. 968.108 Displacement, relocation, and real property acquisition. .................. 310 Sec. 968.110 Other program requirements. ............................................................. 312 Sec. 968.112 Eligible costs. .................................................................................... 313 Sec. 968.115 Modernization and energy conservation standards. .......................... 317 Sec. 968.120 Force account..................................................................................... 317 Sec. 968.125 Initiation of modernization activities................................................. 317 Sec. 968.130 Fund requisitions. .............................................................................. 318 Sec. 968.135 Contracting requirements. ................................................................. 318 Sec. 968.140 On-site inspections. ........................................................................... 319 Sec. 968.145 Fiscal closeout. .................................................................................. 319 Subpart B_Comprehensive Improvement Assistance Program (For PHAs That Own or Operate Fewer Than 250 Units) .................................................................................. 319 Sec. 968.205 Definitions. ........................................................................................ 319 Sec. 968.210 Procedures for obtaining approval of a modernization program. ...... 320 Sec. 968.215 Resident and homebuyer participation. ............................................. 321 Sec. 968.225 Budget revisions. ............................................................................... 321 Sec. 968.230 Progress reports. ................................................................................ 321 Sec. 968.235 Time extensions. ................................................................................ 321 Sec. 968.240 HUD review of PHA performance. ................................................... 322 Subpart C_Comprehensive Grant Program (for PHAs That Own or Operate 250 or More Public Housing Units) ....................................................................................... 322 Sec. 968.305 Definitions. ........................................................................................ 322 Sec. 968.310 Determination of formula amount. .................................................... 323 Sec. 968.315 Comprehensive Plan (including five-year action plan). .................... 326 Sec. 968.320 HUD review and approval of comprehensive plan (including five-year action plan). ............................................................................................................. 332 Sec. 968.325 Annual submission of activities and expenditures. ........................... 334 Sec. 968.330 PHA performance and evaluation report. .......................................... 337 Sec. 968.335 HUD review of PHA performance. ................................................... 337 Subpart D_Vacancy Reduction Program .................................................................... 339 Sec. 968.416 Fund requisitions. .............................................................................. 339 Sec. 968.419 Grantee's oversight responsibilities. .................................................. 340 Sec. 968.422 Progress reports and completion schedule. ....................................... 340 Sec. 968.425 HUD review of grantee performance. ............................................... 340 Sec. 968.428 Program closeout. .............................................................................. 341 Sec. 968.435 Other program requirements. ............................................................. 341 24 CFR 969 Pha-Owned Projects - Continued Operation As Low-Income Housing After Completion Of Debt Service ........................................................................................... 342 Sec. 969.101 Purpose. ................................................................................................. 342 Sec. 969.102 Applicability. ......................................................................................... 342 Sec. 969.103 Definitions. ............................................................................................ 342 Sec. 969.104 Continuing eligibility for operating subsidy.......................................... 343
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Sec. 969.105 Extension of ACC upon payment of operating subsidy. ....................... 343 Sec. 969.106 ACC extension in absence of current operating subsidy. ...................... 344 Sec. 969.107 HUD approval of demolition or disposition before ACC expiration. ... 344 24 CFR 970 Demolition Or Disposition Of Public Housing ........................................... 345 Sec. 970.1 Purpose. ..................................................................................................... 345 Sec. 970.2 Applicability. ............................................................................................. 345 Sec. 970.3 Definitions. ................................................................................................ 346 Sec. 970.4 General requirements for HUD approval of applications for demolition or disposition.................................................................................................................... 347 Sec. 970.5 Displacement and relocation...................................................................... 347 Sec. 970.6 Specific criteria for HUD approval of demolition requests. ...................... 350 Sec. 970.7 Specific criteria for HUD approval of disposition requests....................... 351 Sec. 970.8 PHA application for HUD approval. ......................................................... 351 Sec. 970.9 Disposition of property; use of proceeds. .................................................. 352 Sec. 970.10 Costs of demolition and relocation of displaced tenants. ........................ 353 Sec. 970.11 Replacement housing plan. ...................................................................... 353 Sec. 970.12 Required and permitted actions prior to approval. .................................. 357 Sec. 970.13 Resident organization opportunity to purchase. ...................................... 357 Sec. 970.14 Reports and records. ................................................................................ 361 24 CFR 971 Assessment Of Reasonable Revitalization Potential Public Housing......... 362 Sec. 971.1 Purpose. ..................................................................................................... 363 Sec. 971.3 Standards for identifying developments. ................................................... 363 Sec. 971.5 Long-term viability. ................................................................................... 364 Sec. 971.7 Plan for removal of units from public housing inventories. ...................... 365 Sec. 971.9 Tenant and local government consultation. ............................................... 366 Sec. 971.11 HOPE VI developments. ......................................................................... 366 Sec. 971.13 HUD enforcement authority. ................................................................... 366 24 CFR 972 Conversion Of Public Housing To Tenant-Based Assistance .................... 370 Subpart A_Required Conversion of Public Housing Developments .......................... 371 Sec. 972.100 Purpose. ............................................................................................. 371 Sec. 972.103 Definition of ``conversion.'' ............................................................... 371 Sec. 972.106 Procedure for required conversion of public housing developments to tenant-based assistance. ........................................................................................... 372 Sec. 972.109 Conversion of developments. ............................................................ 372 Sec. 972.112 Relationship between required conversion and demolition/ .............. 372 Sec. 972.115 Relationship between required conversions and HOPE VI developments. .......................................................................................................... 373 Sec. 972.118 Applicability of Uniform Relocation Act. ......................................... 373 Sec. 972.121 Developments subject to this subpart. ............................................... 373 Sec. 972.124 Standards for identifying public housing developments subject to required conversion. ................................................................................................ 373 Sec. 972.127 Standards for determining whether a property is viable in the long term. ......................................................................................................................... 374 Sec. 972.130 Conversion plan components. ............................................................ 375 Sec. 972.133 Public and resident consultation process for developing a conversion plan. ......................................................................................................................... 377
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Sec. 972.136 Timing of submission of conversion plans to HUD. ......................... 377 Sec. 972.139 HUD actions with respect to required conversions. .......................... 378 Subpart B_Voluntary Conversion of Public Housing Developments ......................... 378 Sec. 972.200 Purpose. ............................................................................................. 378 Sec. 972.203 Definition of ``conversion.'' ............................................................... 378 Sec. 972.206 Required initial assessments. ............................................................. 378 Sec. 972.209 Procedure for voluntary conversion of public housing developments to tenant-based assistance. ........................................................................................... 379 Sec. 972.212 Timing of voluntary conversion. ....................................................... 379 Sec. 972.215 Applicability of the Uniform Relocation Act. ................................... 380 Sec. 972.218 Conversion assessment components.................................................. 380 Sec. 972.221 Timing of submission of conversion assessments to HUD. .............. 381 Sec. 972.224 Necessary conditions for HUD approval of conversion. ................... 381 Sec. 972.227 Public and resident consultation process for developing a conversion plan. ......................................................................................................................... 382 Sec. 972.230 Conversion plan components. ........................................................... 382 Sec. 972.233 Timing of submission of conversion plans to HUD. ......................... 384 Sec. 972.236 HUD process for approving a conversion plan. ................................ 384 Sec. 972.239 HUD actions with respect to a conversion plan. ............................... 384 49 CFR 24 Uniform Relocation Assistance .................................................................... 385 Subpart A_General ...................................................................................................... 386 Sec. 24.1 Purpose. ................................................................................................... 386 Sec. 24.2 Definitions. .............................................................................................. 387 Sec. 24.3 No duplication of payments..................................................................... 392 Sec. 24.4 Assurances, monitoring and corrective action. ........................................ 392 Sec. 24.5 Manner of notices. ................................................................................... 393 Sec. 24.6 Administration of jointly-funded projects. .............................................. 393 Sec. 24.7 Federal agency waiver of regulations. ..................................................... 393 Sec. 24.8 Compliance with other laws and regulations. .......................................... 394 Sec. 24.9 Recordkeeping and reports. ..................................................................... 394 Sec. 24.10 Appeals. ................................................................................................. 394 Subpart B_Real Property Acquisition ......................................................................... 395 Sec. 24.101 Applicability of acquisition requirements. .......................................... 395 Sec. 24.102 Basic acquisition policies. ................................................................... 396 Sec. 24.103 Criteria for appraisals. ......................................................................... 397 Sec. 24.104 Review of appraisals............................................................................ 399 Sec. 24.105 Acquisition of tenant-owned improvements. ...................................... 399 Sec. 24.106 Expenses incidental to transfer of title to the Agency. ........................ 399 Sec. 24.107 Certain litigation expenses. ................................................................. 400 Sec. 24.108 Donations. ............................................................................................ 400 Subpart C_General Relocation Requirements............................................................. 400 Sec. 24.201 Purpose. ............................................................................................... 400 Sec. 24.202 Applicability. ....................................................................................... 400 Sec. 24.203 Relocation notices. .............................................................................. 400 Sec. 24.204 Availability of comparable replacement dwelling before displacement. ................................................................................................................................. 401
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Sec. 24.205 Relocation planning, advisory services, and coordination. ................. 402 Sec. 24.206 Eviction for cause. ............................................................................... 403 Sec. 24.207 General requirements--claims for relocation payments. ...................... 404 Sec. 24.208 Aliens not lawfully present in the United States. ................................ 405 Sec. 24.209 Relocation payments not considered as income. ................................. 406 Subpart D_Payments for Moving and Related Expenses ............................................ 406 Sec. 24.301 Payment for actual reasonable moving and related expenses--residential moves. ...................................................................................................................... 406 Sec. 24.305, as the Agency determines to be reasonable and necessary. ................ 407 Sec. 24.302 Fixed payment for moving expenses--residential moves. ................... 407 Sec. 24.303 Payment for actual reasonable moving and related expenses-nonresidential moves. .............................................................................................. 407 Sec. 24.304 Reestablishment expenses--nonresidential moves. .............................. 409 Sec. 24.305 Ineligible moving and related expenses. .............................................. 410 Sec. 24.306 Fixed payment for moving expenses--nonresidential moves. ............. 410 Sec. 24.307 Discretionary utility relocation payments. ........................................... 411 Subpart E_Replacement Housing Payments ............................................................... 412 Sec. 24.401 Replacement housing payment for 180-day homeowner- ................... 412 Sec. 24.402 Replacement housing payment for 90-day occupants. ........................ 414 Sec. 24.403 Additional rules governing replacement housing payments. ............... 415 Sec. 24.404 Replacement housing of last resort. ..................................................... 417 Subpart F_Mobile Homes............................................................................................ 418 Sec. 24.501 Applicability. ....................................................................................... 418 Sec. 24.502 Moving and related expenses--mobile homes. .................................... 418 Sec. 24.503 Replacement housing payment for 180-day mobile homeowner- ....... 419 Sec. 24.504 Replacement housing payment for 90-day mobile home occupants. .. 419 Sec. 24.505 Additional rules governing relocation payments to mobile home occupants. ................................................................................................................ 419 Subpart G_Certification............................................................................................... 420 Sec. 24.601 Purpose. ............................................................................................... 420 Sec. 24.602 Certification application. ..................................................................... 420 Sec. 24.603 Monitoring and corrective action......................................................... 420 Subpart A--General ..................................................................................................... 421 Subpart B--Real Property Acquisition......................................................................... 423 Subpart C--General Relocation Requirements ............................................................ 424 Subpart D--Payment for Moving and Related Expenses ............................................. 424 Subpart E--Replacement Housing Payments............................................................... 425 Subpart F--Mobile Homes ........................................................................................... 427
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24 CFR 8 (Part) Nondiscrimination Based On Handicap
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 132-154] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 8_NONDISCRIMINATION BASED ON HANDICAP IN FEDERALLY ASSISTED PROGRAMS AND ACTIVITIES OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Subpart A_General Provisions 8.1 Purpose. 8.2 Applicability. 8.3 Definitions. 8.4 Discrimination prohibited. 8.5 [Reserved] 8.6 Communications. Subpart B_Employment 8.10 General prohibitions against employment discrimination. 8.11 Reasonable accommodation. {[[Page 133]]} 8.12 Employment criteria. 8.13 Preemployment inquiries. Subpart C_Program Accessibility 8.20 General requirement concerning program accessibility. 8.21 Non-housing facilities. 8.22 New construction--housing facilities. 8.23 Alterations of existing housing facilities. 8.24 Existing housing programs. 8.25 Public housing and multi-family Indian housing.
8.26 Distribution of accessible dwelling units. 8.27 Occupancy of accessible dwelling units. 8.28 Housing certificate and housing voucher programs. 8.29 Homeownership programs (sections 235(i) and 235(j), Turnkey III and Indian housing mutual self-help programs). 8.30 Rental rehabilitation program. 8.31 Historic properties. 8.32 Accessibility standards. 8.33 Housing adjustments. Subpart D_Enforcement 8.50 Assurances required. 8.51 Self-evaluation. 8.52 Remedial and affirmative action. 8.53 Designation of responsible employee and adoption of grievance procedures. 8.54 Notice. 8.55 Compliance information. 8.56 Conduct of investigations. 8.57 Procedure for effecting compliance. 8.58 Hearings. Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d) and 5309. Source: 53 FR 20233, June 2, 1988, unless otherwise noted.
Subpart A_General Provisions
Sec. 8.1 Purpose.
(a) The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C 794), to the end that no otherwise qualified individual with handicaps in the United States shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Housing and Urban Development. This part also implements section 109 of the Housing and
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the standards set forth in SEC. 8.32 is accessible within the meaning of this paragraph. When a unit in an existing facility which is being made accessible as a result of alterations is intended {[[Page 134]]} for use by a specific qualified individual with handicaps (e.g., a current occupant of such unit or of another unit under the control of the same recipient, or an applicant on a waiting list), the unit will be deemed accessible if it meets the requirements of applicable standards that address the particular disability or impairment of such person. Accessible route means a continuous unobstructed path connecting accessible elements and spaces in a building or facility that complies with the space and reach requirements of applicable standards prescribed by SEC. 8.32. An accessible route that serves only accessible units occupied by persons with hearing or vision impairments need not comply with those requirements intended to effect accessibility for persons with mobility impairments. Adaptability means the ability of certain elements of a dwelling unit, such as kitchen counters, sinks, and grab bars, to be added to, raised, lowered, or otherwise altered, to accommodate the needs of persons with or without handicaps, or to accommodate the needs of persons with different types or degrees of disability. For example, in a unit adaptable for a hearingimpaired person, the wiring for visible emergency alarms may be installed but the alarms need not be installed until such time as the unit is made ready for occupancy by a hearingimpaired person. Alteration means any change in a facility or its permanent fixtures or equipment. It includes, but is not limited to, remodeling, renovation, rehabilitation, reconstruction, changes or rearrangements in structural parts and extraordinary repairs. It does not include normal maintenance or repairs, reroofing, interior decoration, or changes to mechanical systems.
Community Development Act of 1974, as amended (42 U.S.C. 5309). This part does not effectuate section 504 as it applies to any program or activity conducted by the Department. Compliance with this part does not assure compliance with requirements for accessibility by physically-handicapped persons imposed under the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157; 24 CFR part 40). (b) The policies and standards for compliance established by this part are established in contemplation of, and with a view to enforcement through, the Department's administration of programs or activities receiving Federal financial assistance and the administrative procedures described in subparts D and E (including, without limitation, judicial enforcement under SEC. 8.57(a)).
Sec. 8.2 Applicability.
This part applies to all applicants for, and recipients of, HUD assistance in the operation of programs or activities receiving such assistance. Such assistance includes, but is not limited to, that which is listed in appendix A of this part.
Sec. 8.3 Definitions.
As used in this part: Accessible, when used with respect to the design, construction, or alteration of a facility or a portion of a facility other than an individual dwelling unit, means that the facility or portion of the facility when designed, constructed or altered, can be approached, entered, and used by individuals with physical handicaps. The phrase accessible to and usable by is synonomous with accessible. Accessible, when used with respect to the design, construction, or alteration of an individual dwelling unit, means that the unit is located on an accessible route and when designed, constructed, altered or adapted can be approached, entered, and used by individuals with physical handicaps. A unit that is on an accessible route and is adaptable and otherwise in compliance with
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Applicant for assistance means one who submits an application, request, plan, or statement required to be approved by a Department official or by a primary recipient as a condition of eligibility for Federal financial assistance. An application means such a request, plan or statement. Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities receiving Federal financial assistance. For example, auxiliary aids for persons with impaired vision may include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids for persons with impaired hearing may include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD's), interpreters, notetakers, written materials, and other similar services and devices. Department or HUD means the Department of Housing and Urban Development. Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other real or personal property or interest in the property. Federal financial assistance means any assistance provided or otherwise made available by the Department through any grant, loan, contract or any other arrangement, in the form of: (a) Funds; (b) Services of Federal personnel; or (c) Real or personal property or any interest in or use of such property, including: (1) Transfers or leases of the property for less than fair market value or for reduced consideration; and (2) Proceeds from a subsequent transfer or lease of the property if the Federal share of its fair market value is not returned to the Federal Government. Federal financial assistance includes community development funds in the form of proceeds from loans guaranteed under
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section 108 of the Housing and Community Development Act of 1974, as amended, but does not include assistance made available through direct Federal procurement contracts or payments made under these contracts or any other contract of insurance or guaranty. Handicap means any condition or characteristic that renders a person an individual with handicaps. Historic preservation programs or activities means programs or activities receiving Federal financial assistance {[[Page 135]]} that have preservation of historic properties as a primary purpose. Historic properties means those properties that are listed or are eligible for listing in the National Register of Historic Places, or such properties designated as historic under a statute of the appropriate State or local government body. Individual with handicaps means any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. For purposes of employment, this term does not include: Any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents the individual from performing the duties of the job in question, or whose employment, by reason of current alcohol or drug abuse, would constitute a direct threat to property or the safety of others; or any individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job. For purposes of other programs and activities, the term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents the individual from participating in the program or activity in question, or whose participation, by reason of such current alcohol or drug abuse, would constitute a
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Multifamily housing project means a project containing five or more dwelling units. Primary recipient means a person, group, organization, State or local unit of government that is authorized or required to extend Federal financial assistance to another recipient for the purpose of carrying out a program or activity. Program or activity means all of the operations of: (a)(1) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or (2) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local {[[Page 136]]} government entity) to which the assistance is extended, in the case of assistance to a State or local government; (b)(1) A college, university, or other post-secondary institution, or a public system of higher education; or (2) A local educational agency (as defined in section 198(a)(10) of the Elementary and Secondary Education Act of 1965), system of vocational education, or other school system; (c)(1) An entire corporation, partnership, or other private organization, or an entire sole proprietorship-(i) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (ii) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (2) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (d) Any other entity which is established by two or more of the entities described in paragraphs (a), (b), or (c) of this section;
direct threat to property or the safety of others. As used in this definition, the phrase: (a) Physical or mental impairment includes: (1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction and alcoholism. (b) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. (c) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. (d) Is regarded as having an impairment means: (1) Has a physical or mental impairment that does not substantially limit one or more major life activities but that is treated by a recipient as constituting such a limitation; (2) Has a physical or mental impairment that substantially limits one or more major life activities only as a result of the attitudes of others toward such impairment; or (3) Has none of the impairments defined in paragraph (a) of this section but is treated by a recipient as having such an impairment.
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any part of which is extended Federal financial assistance. Project means the whole of one or more residential structures and appurtenant structures, equipment, roads, walks, and parking lots which are covered by a single contract for Federal financial assistance or application for assistance, or are treated as a whole for processing purposes, whether or not located on a common site. Qualified individual with handicaps means: (a) With respect to employment, an individual with handicaps who, with reasonable accommodation, can perform the essential functions of the job in question; and (b) With respect to any nonemployment program or activity which requires a person to perform services or to achieve a level of accomplishment, an individual with handicaps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the recipient can demonstrate would result in a fundamental alteration in its nature; or (c) With respect to any other nonemployment program or activity, an individual with handicaps who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity. Essential eligibility requirements include stated eligibility requirements such as income as well as other explicit or implicit requirements inherent in the nature of the program or activity, such as requirements that an occupant of multifamily housing be capable of meeting the recipient's selection criteria and be capable of complying with all obligations of occupancy with or without supportive services provided by persons other than the recipient. For example, a chronically metally ill person whose particular condition poses a significant risk of substantial interference with the safety or enjoyment of others or with his or her own health or safety in the absence of necessary supportive services may be qualified for
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occupancy in a project where such supportive services are provided by the recipient as part of the assisted program. The person may not be qualified for a project lacking such services. Recipient means any State or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended for any program or activity directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance. An entity or person receiving housing assistance payments from a recipient on behalf of eligible families under a housing assistance payments program or a voucher program is not a recipient or subrecipient merely by virtue of receipt of such payments. Replacement cost of the completed facility means the current cost of construction and equipment for a newly constructed housing facility of the size and type being altered. Construction and equipment costs do not include the {[[Page 137]]} cost of land, demolition, site improvements, non-dwelling facilities and administrative costs for project development activities. Secretary means the Secretary of Housing and Urban Development. Section 504 means section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, as it applies to programs or activities receiving Federal financial assistance. Substantial impairment means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration. [53 FR 20233, June 2, 1988; 54 FR 8188, Feb. 27, 1989]
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(ii) In the case of historic preservation programs or activities, require the recipient to take any action that would result in a substantial impairment of significant historic features of an historic property; or (iii) Require a recipient to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens. If an action would result in such an alteration or such burdens, the recipient shall take any action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with handicaps receive the benefits and services of the program or activity. (2) Methods--(i) General. A recipient may comply with the requirements of this section in its programs and activities receiving Federal financial assistance through such means as location of programs or services to accessible facilities or accessible portions of facilities, assignment of aides to beneficiaries, home visits, the addition or redesign of equipment (e.g., appliances or furnishings) changes in management policies or procedures, acquisition or construction of additional facilities, or alterations to existing facilities on a selective basis, or any other methods that result in making its program or activity accessible to individuals with handicaps. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. In choosing among available methods for meeting the requirements of this section, the recipient shall give priority to those methods that offer programs and activities to qualified individuals with handicaps in the most integrated setting appropriate. (ii) Historic preservation programs or activities. In meeting the requirements of SEC. 8.21(c) in historic preservation programs or activities, a recipient shall give priority to methods that provide physical access to individuals with handicaps. In cases where a physical alteration to an historic property is not required because of
Subpart C_Program Accessibility
Sec. 8.20 General requirement concerning program accessibility.
Except as otherwise provided in SEC. Sec. 8.21(c)(1), 8.24(a), 8.25, and 8.31, no qualified individual with handicaps shall, because a recipient's facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to {[[Page 141]]} discrimination under any program or activity that receives Federal financial assistance.
Sec. 8.21 Non-housing facilities.
(a) New construction. New nonhousing facilities shall be designed and constructed to be readily accessible to and usable by individuals with handicaps. (b) Alterations to facilities. Alterations to existing non-housing facilities shall, to the maximum extent feasible, be made to be readily accessible to and usable by individuals with handicaps. For purposes of this paragraph, the phrase to the maximum extent feasible shall not be interpreted as requiring that a recipient make a nonhousing facility, or element thereof, accessible if doing so would impose undue financial and administrative burdens on the operation of the recipient's program or activity. (c) Existing non-housing facilities--(1) General. A recipient shall operate each nonhousing program or activity receiving Federal financial assistance so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps. This paragraph does not-(i) Necessarily require a recipient to make each of its existing non-housing facilities accessible to and usable by individuals with handicaps;
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SEC. 8.21(c)(1)(ii) or (iii), alternative methods of achieving program accessibility include using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible; assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or adopting other innovative methods. (3) Time period for compliance. The recipient shall comply with the obligations established under this section within sixty days of July 11, 1988, except that where structural changes in facilities are undertaken, such changes shall be made within three years of July 11, 1988, but in any event as expeditiously as possible. (4) Transition plan. If structural changes to non-housing facilities will be undertaken to achieve program accessibility, a recipient shall develop, within six months of July 11, 1988, a transition plan setting forth the steps necessary to complete such changes. {[[Page 142]]} The plan shall be developed with the assistance of interested persons, including individuals with handicaps or organizations representing individuals with handicaps. A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum-(i) Identify physical obstacles in the recipient's facilities that limit the accessibility of its programs or activities to individuals with handicaps; (ii) Describe in details the methods that will be used to make the facilities accessible; (iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; (iv) Indicate the official responsible for implementation of the plan; and (v) Identify the persons or groups with whose assistance the plan was prepared.
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(Approved by the Office of Management and Budget under control number 2529-0034) [53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988, as amended at 54 FR 37645, Sept. 12, 1989]
Sec. 8.22 New construction-housing facilities.
(a) New multifamily housing projects (including public housing and Indian housing projects as required by SEC. 8.25) shall be designed and constructed to be readily accessible to and usable by individuals with handicaps. (b) Subject to paragraph (c) of this section, a minimum of five percent of the total dwelling units or at least one unit in a multifamily housing project, whichever is greater, shall be made accessible for persons with mobility impairments. A unit that is on an accessible route and is adaptable and otherwise in compliance with the standards set forth in SEC. 8.32 is accessible for purposes of this section. An additional two percent of the units (but not less than one unit) in such a project shall be accessible for persons with hearing or vision impairments. (c) HUD may prescribe a higher percentage or number than that prescribed in paragraph (b) of this section for any area upon request therefor by any affected recipient or by any State or local government or agency thereof based upon demonstration to the reasonable satisfaction of HUD of a need for a higher percentage or number, based on census data or other available current data (including a currently effective Housing Assistance Plan or Comprehensive Homeless Assistance Plan), or in response to evidence of a need for a higher percentage or number received in any other manner. In reviewing such request or otherwise assessing the existence of such needs, HUD shall take into account the expected needs of eligible persons with and without handicaps. [53 FR 20233, June 2, 1988, as amended at 56 FR 920, Jan. 9, 1991]
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available current data (including a currently effective Housing Assistance Plan or Comprehensive Homeless Assistance Plan), or in response to evidence of a need for a higher percentage or number received in any other manner. In reviewing such request or otherwise assessing the existence of such needs, HUD shall take into account the expected needs of eligible persons with and without handicaps.
Sec. 8.23 Alterations of existing housing facilities.
(a) Substantial alteration. If alterations are undertaken to a project (including a public housing project as required by SEC. 8.25(a)(2)) that has 15 or more units and the cost of the alterations is 75 percent or more of the replacement cost of the completed facility, then the provisions of SEC. 8.22 shall apply. (b) Other alterations. (1) Subject to paragraph (b)(2) of this section, alterations to dwelling units in a multifamily housing project (including public housing) shall, to the maximum extent feasible, be made to be readily accessible to and usable by individuals with handicaps. If alterations of single elements or spaces of a dwelling unit, when considered together, amount to an alteration of a dwelling unit, the entire dwelling unit shall be made accessible. Once five percent of the dwelling units in a project are readily accessible to and usable by individuals with mobility impairments, then no additional elements of dwelling units, or entire dwelling units, are required to be accessible under this paragraph. Alterations to common areas or parts of facilities that affect accessibility of existing housing facilities shall, to the maximum extent feasible, be made to be accessible to and usable by individuals with handicaps. For purposes of {[[Page 143]]} this paragraph, the phrase to the maximum extent feasible shall not be interpreted as requiring that a recipient (including a PHA) make a dwelling unit, common area, facility or element thereof accessible if doing so would impose undue financial and administrative burdens on the operation of the multifamily housing project. (2) HUD may prescribe a higher percentage or number than that prescribed in paragraph (b)(1) of this section for any area upon request therefor by any affected recipient or by any State or local government or agency thereof based upon demonstration to the reasonable satisfaction of HUD of a need for a higher percentage or number, based on census data or other
Sec. 8.24 Existing housing programs.
(a) General. A recipient shall operate each existing housing program or activity receiving Federal financial assistance so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps. This paragraph does not-(1) Necessarily require a recipient to make each of its existing facilities accessible to and usable by individuals with handicaps; (2) Require a recipient to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens. If an action would result in such an alteration or such burdens, the recipient shall take any action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with handicaps receive the benefits and services of the program or activity. (b) Methods. A recipient may comply with the requirements of this section through such means as reassignment of services to accessible buildings, assignment of aides to beneficiaries, provision of housing or related services at alternate accessible sites, alteration of existing facilities and construction of new facilities, or any other methods that result in making its programs or activities readily accessible to and usable by individuals with handicaps. A recipient is not required to make structural changes in existing housing facilities where other methods are effective in achieving compliance with this section or to provide
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supportive services that are not part of the program. In choosing among available methods for meeting the requirements of this section, the recipient shall give priority to those methods that offer programs and activities to qualified individuals with handicaps in the most integrated setting appropriate. (c) Time period for compliance. The recipient shall comply with the obligations established under this section within sixty days of July 11, 1988 except that-(1) In a public housing program where structural changes in facilities are undertaken, such changes shall be made within the timeframes established in SEC. 8.25(c). (2) In other housing programs, where structural changes in facilities are undertaken, such changes shall be made within three years of July 11, 1988, but in any event as expeditiously as possible. (d) Transition plan and time period for structural changes. Except as provided in SEC. 8.25(c), in the event that structural changes to facilities will be undertaken to achieve program accessibility, a recipient shall develop, within six months of July 11, 1988, a transition plan setting forth the steps necessary to complete such changes. The plan shall be developed with the assistance of interested persons, including individuals with handicaps or organizations representing individuals with handicaps. A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum-- {[[Page 144]]} (1) Identify physical obstacles in the recipient's facilities that limit the accessibility of its programs or activities to individuals with handicaps; (2) Describe in detail the methods that will be used to make the facilities accessible; (3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period;
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(4) Indicate the official responsible for implementation of the plan; and (5) Identify the persons or groups with whose assistance the plan was prepared. (Approved by the Office of Management and Budget under control number 2529-0034) [53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988, as amended at 54 FR 37645, Sept. 12, 1989]
Sec. 8.25 Public housing and multi-family Indian housing.
(a) Development and alteration of public housing and multi-family Indian housing. (1) The requirements of SEC. 8.22 shall apply to all newly constructed public housing and multi-family Indian housing. (2) The requirements of SEC. 8.23 shall apply to public housing and multi-family Indian housing developed through rehabilitation and to the alteration of public housing and multi-family Indian housing. (3) In developing public housing and multi-family Indian housing through the purchase of existing properties PHAs and IHAs shall give priority to facilities which are readily accessible to and usable by individuals with handicaps. (b) Existing public housing and multifamily Indian housing-general. The requirements of SEC. 8.24(a) shall apply to public housing and multi-family Indian housing programs. (c) Existing public housing and multifamily Indian housing--needs assessment and transition plan. As soon as possible, each PHA (for the purpose of this paragraph, this includes an Indian Housing Authority) shall assess, on a PHA-wide basis, the needs of current tenants and applicants on its waiting list for accessible units and the extent to which such needs have not been met or cannot reasonably be met within four years through development, alterations otherwise contemplated, or other programs administered by the PHA (e.g., Section 8 Moderate Rehabilitation or Section 8 Existing Housing or Housing Vouchers). If the PHA currently has no accessible units or
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persons including individuals with handicaps or organizations representing individuals with handicaps. A copy of the needs assessment and transition plan shall be made available for public inspection. The transition plan shall, at a minimum-(1) Identify physical obstacles in the PHA's facilities (e.g., dwelling units and common areas) that limit the accessibility of its programs or activities to individuals with handicaps; (2) Describe in detail the methods that will be used to make the PHA's facilities accessible. A PHA may, if necessary, provide in its plan that it will seek HUD approval, under 24 CFR part 968, of a comprehensive modernization program to meet the needs of eligible individuals with handicaps; (3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; (4) Indicate the official responsible for implementation of the plan; and (5) Identify the persons or groups with whose assistance the plan was prepared. (Approved by the Office of Management and Budget under control number 2529-0034) [53 FR 20233, June 2, 1988, as amended at 54 FR 37645, Sept. 12, 1989; 56 FR 920, Jan. 9, 1991]
if the PHA or HUD determines that information regarding the availability of accessible units has not been communicated sufficiently so that, as a result, the number of eligible qualified individuals with handicaps on the waiting list is not fairly representative of the number of such persons in the area, the PHA's assessment shall include the needs of eligible qualified individuals with handicaps in the area. If the PHA determines, on the basis of such assessment, that there is no need for additional accessible dwelling units or that the need is being or will be met within four years through other means, such as new construction, Section 8 or alterations otherwise contemplated, no further action is required by the PHA under this paragraph. If the PHA determines, on the basis of its needs assessment, that alterations to make additional units accessible must be made so that the needs of eligible qualified individuals with handicaps may be accommodated proportionally to the needs of non-handicapped individuals in the same categories, then the PHA shall develop a transition plan to achieve program accessibility. The PHA shall complete the needs assessment and transition plan, if one is necessary, as expeditiously as possible, but in any event no later than two years after July 11, 1988. The PHA shall complete structural changes necessary to achieve program accessibility as soon as possible but in any event no later than four years after July 11, 1988. The Assistant Secretary for Fair Housing and Equal Opportunity and the Assistant Secretary for Public and Indian Housing may extend the four year period for a period not to exceed two years, on a caseby-case determination that compliance within that period would impose undue financial and administrative burdens on the operation of the recipient's public housing and multi-family Indian housing program. {[[Page 145]]} The Secretary or the Undersecretary may further extend this time period in extraordinary circumstances, for a period not to exceed one year. The plan shall be developed with the assistance of interested
Sec. 8.26 Distribution of accessible dwelling units.
Accessible dwelling units required by SEC. 8.22, 8.23, 8.24 or 8.25 shall, to the maximum extent feasible and subject to reasonable health and safety requirements, be distributed throughout projects and sites and shall be available in a sufficient range of sizes and amenities so that a qualified individual with handicaps' choice of living arrangements is, as a whole, comparable to that of other persons eligible for housing assistance under the same program. This provision shall not be construed to require
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provision of an elevator in any multifamily housing project solely for the purpose of permitting location of accessible units above or below the accessible grade level.
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Sec. 8.27 Occupancy of accessible dwelling units.
(a) Owners and managers of multifamily housing projects having accessible units shall adopt suitable means to assure that information regarding the availability of accessible units reaches eligible individuals with handicaps, and shall take reasonable nondiscriminatory steps to maximize the utilization of such units by eligible individuals whose disability requires the accessibility features of the particular unit. To this end, when an accessible unit becomes vacant, the owner or manager before offering such units to a non-handicapped applicant shall offer such unit: (1) First, to a current occupant of another unit of the same project, or comparable projects under common control, having handicaps requiring the accessibility features of the vacant unit and occupying a unit not having such features, or, if no such occupant exists, then (2) Second, to an eligible qualified applicant on the waiting list having a handicap requiring the accessibility features of the vacant unit. (b) When offering an accessible unit to an applicant not having handicaps requiring the accessibility features of the unit, the owner or manager may require the applicant to agree (and may incorporate this agreement in the lease) to move to a nonaccessible unit when available.
(1) In providing notice of the availability and nature of housing assistance for low-income families under program requirements, adopt suitable means to assure that the notice reaches eligible individuals with handicaps; {[[Page 146]]} (2) In its activities to encourage participation by owners, include encouragement of participation by owners having accessible units; (3) When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the PHA and, if necessary, otherwise assist the family in locating an available accessible dwelling unit; (4) Take into account the special problem of ability to locate an accessible unit when considering requests by eligible individuals with handicaps for extensions of Housing Certificates or Housing Vouchers; and (5) If necessary as a reasonable accommodation for a person with disabilities, approve a family request for an exception rent under SEC. 982.504(b)(2) for a regular tenancy under the Section 8 certificate program so that the program is readily accessible to and usable by persons with disabilities. (b) In order to ensure that participating owners do not discriminate in the recipient's federally assisted program, a recipient shall enter into a HUD-approved contract with participating owners, which contract shall include necessary assurances of nondiscrimination. [53 FR 20233, June 2, 1988, as amended at 63 FR 23853, Apr. 30, 1998]
Sec. 8.28 Housing certificate and housing voucher programs.
(a) In carrying out the requirements of this subpart, a recipient administering a Section 8 Existing Housing Certificate program or a housing voucher program shall:
Sec. 8.29 Homeownership programs (sections 235(i) and 235(j), Turnkey III and Indian housing mutual self-help programs).
Any housing units newly constructed or rehabilitated for purchase or single family (including semi-attached and attached) units
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provided if such accessibility would substantially impair the significant historic features of the property or result in undue financial and administrative burdens.
to be constructed or rehabilitated in a program or activity receiving Federal financial assistance shall be made accessible upon request of the prospective buyer if the nature of the handicap of an expected occupant so requires. In such case, the buyer shall consult with the seller or builder/sponsor regarding the specific design features to be provided. If accessibility features selected at the option of the homebuyer are ones covered by the standards prescribed by SEC. 8.32, those features shall comply with the standards prescribed in SEC. 8.32. The buyer shall be permitted to depart from particular specifications of these standards in order to accommodate his or her specific handicap. The cost of making a facility accessible under this paragraph may be included in the mortgage amount within the allowable mortgage limits, where applicable. To the extent such costs exceed allowable mortgage limits, they may be passed on to the prospective homebuyer, subject to maximum sales price limitations (see 24 CFR 235.320.)
Sec. 8.32 Accessibility standards.
(a) Effective as of July 11, 1988, design, construction, or alteration of buildings in conformance with sections 3-8 of the Uniform Federal Accessibility Standards (UFAS) shall be deemed to comply with the requirements of SEC. Sec. 8.21, 8.22, 8.23, and 8.25 with respect to those buildings. Departures from particular technical and scoping requirements of the UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is {[[Page 147]]} provided. The alteration of housing facilities shall also be in conformance with additional scoping requirements contained in this part. Persons interested in obtaining a copy of the UFAS are directed to SEC. 40.7 of this title. (b) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of individuals with physical handicaps. (c) This section does not require recipients to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member. (d) For purposes of this section, section 4.1.4(11) of UFAS may not be used to waive or lower the minimum of five percent accessible units required by SEC. 8.22(b) or to apply the minimum only to projects of 15 or more dwelling units. (e) Except as otherwise provided in this paragraph, the provisions of SEC. Sec. 8.21 (a) and (b), 8.22 (a) and (b), 8.23, 8.25(a) (1) and (2), and 8.29 shall apply to facilities that
Sec. 8.30 Rental rehabilitation program.
Each grantee or state recipient in the rental rehabilitation program shall, subject to the priority in 24 CFR 511.10(l) and in accordance with other requirements in 24 CFR part 511, give priority to the selection of projects that will result in dwelling units being made readily accessible to and usable by individuals with handicaps. [53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988]
Sec. 8.31 Historic properties.
If historic properties become subject to alterations to which this part applies the requirements of SEC. 4.1.7 of the standards of SEC. 8.32 of this part shall apply, except in the case of the Urban Development Action Grant (UDAG) program. In the UDAG program the requirements of 36 CFR part 801 shall apply. Accessibility to historic properties subject to alterations need not be
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are designed, constructed or altered after July 11, 1988. If the design of a facility was commenced before July 11, 1988, the provisions shall be followed to the maximum extent practicable, as determined by the Department. For purposes of this paragraph, the date a facility is constructed or altered shall be deemed to be the date bids for the construction or alteration of the facility are solicited. For purposes of the Urban Development Action Grant (UDAG) program, the provisions shall apply to the construction or alteration of facilities that are funded under applications submitted after July 11, 1988. If the UDAG application was submitted before July 11, 1988, the provisions shall apply, to the maximum extent practicable, as determined by the Department. [53 FR 20233, June 2, 1988, as amended at 61 FR 5203, Feb. 9, 1996]
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Sec. 8.33 Housing adjustments.
A recipient shall modify its housing policies and practices to ensure that these policies and practices do not discriminate, on the basis of handicap, against a qualified individual with handicaps. The recipient may not impose upon individuals with handicaps other policies, such as the prohibition of assistive devices, auxiliary alarms, or guides in housing facilities, that have the effect of limiting the participation of tenants with handicaps in the recipient's federally assisted housing program or activity in violation of this part. Housing policies that the recipient can demonstrate are essential to the housing program or activity will not be regarded as discriminatory within the meaning of this section if modifications to them would result in a fundamental alteration in the nature of the program or activity or undue financial and administrative burdens.
Subpart D_Enforcement
Sec. 8.50 Assurances required.
(a) Assurances. An applicant for Federal financial assistance for a program or
activity to which this part applies shall submit an assurance to HUD, or in the case of a subrecipient to a primary recipient, on a form specified by the responsible civil rights official, that the program or activity will be operated in compliance with this part. An applicant may incorporate these assurances by reference in subsequent applications to the Department. (b) Duration of obligation. (1) In the case of Federal financial assistance extended in the form of real property or to provide real property or structures on the property, the assurance will obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for the purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. (2) In the case of Federal financial assistance extended to provide personal property, the assurance will obligate the recipient for the period during which it retains ownership or possession of the property. {[[Page 148]]} (3) In all other cases the assurance will obligate the recipient for the period during which Federal financial assistance is extended. (c) Covenants. (1) Where Federal financial assistance is provided in the form of real property or interest in the property from the Department, the instrument effecting or recording this transfer shall contain a covenant running with the land to assure nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. (2) Where no transfer of property is involved but property is purchased or improved with Federal financial assistance, the recipient shall agree to include the covenant described in paragraph (b)(2) of this section in the instrument effecting or recording any subsequent transfer of the property.
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(3) Where Federal financial assistance is provided in the form of real property or interest in the property from the Department, the covenant shall also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant. If a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on the property for the purposes for which the property was transferred, the Secretary may, upon request of the transferee and if necessary to accomplish such financing and upon such conditions as he or she deems appropriate, agree to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.
24 CFR 35 Lead-Based Paint Poisoning Prevention
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 313-358] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 35_LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN RESIDENTIAL STRUCTURES Subpart A_Disclosure of Known LeadBased Paint Hazards Upon Sale or Lease of Residential Property 35.80 Purpose. 35.82 Scope and applicability. 35.84 Effective dates. 35.86 Definitions. 35.88 Disclosure requirements for sellers and lessors. 35.90 Opportunity to conduct an evaluation. 35.92 Certification and acknowledgment of disclosure. 35.94 Agent responsibilities. 35.96 Enforcement. 35.98 Impact on State and local requirements. Subpart B_General Lead-Based Paint Requirements and Definitions for All Programs 35.100 Purpose and applicability. 35.105 Effective dates. 35.106 Information collection requirements. 35.110 Definitions. 35.115 Exemptions. 35.120 Options. 35.125 Notice of evaluation and hazard reduction activities.
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35.130 Lead hazard information pamphlet. 35.135 Use of paint containing lead. 35.140 Prohibited methods of paint removal. 35.145 Compliance with Federal laws and authorities. 35.150 Compliance with other State, tribal, and local laws. 35.155 Minimum requirements. 35.160 Waivers. 35.165 Prior evaluation or hazard reduction. 35.170 Noncompliance with the requirements of subparts B through R. 35.175 Records. Subpart C_Disposition of Residential Property Owned by a Federal Agency Other Than HUD 35.200 Purpose and applicability. 35.205 Definitions and other general requirements. 35.210 Disposition of residential property constructed before 1960. 35.215 Disposition of residential property constructed after 1959 and before 1978. Subpart D_Project-Based Assistance Provided by a Federal Agency Other Than HUD 35.300 Purpose and applicability. 35.305 Definitions and other general requirements. 35.310 Notices and pamphlet. 35.315 Risk assessments. 35.320 Hazard reduction. 35.325 Child with an environmental intervention blood lead level. Subpart E [Reserved] Subpart F_HUD-Owned Single Family Property 35.500 Purpose and applicability. 35.505 Definitions and other general requirements. 35.510 Required procedures. Subpart G_Multifamily Mortgage Insurance 35.600 Purpose and applicability. 35.605 Definitions and other general requirements. 35.610 Exemption. 35.615 Notices and pamphlet. 35.620 Multifamily insured property constructed before 1960. 35.625 Multifamily Insured Property constructed after 1959 and before 1978. 35.630 Conversions and Major Rehabilitations. {[[Page 314]]}
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Subpart H_Project-Based Rental Assistance 35.700 Purpose and applicability. 35.705 Definitions and other general requirements. 35.710 Notices and pamphlet. 35.715 Multifamily properties receiving more than $5,000 per unit. 35.720 Multifamily properties receiving up to $5,000 per unit, and singlefamily properties. 35.725 Section 8 rent adjustments. 35.730 Child with an environmental intervention blood lead level. Subpart I_HUD-Owned and Mortgagee-in-Possession Multifamily Property. 35.800 Purpose and applicability. 35.805 Definitions and other general requirements. 35.810 Notices and pamphlet. 35.815 Evaluation. 35.820 Interim controls. 35.825 Ongoing lead-based paint maintenance and reevaluation. 35.830 Child with an environmental intervention blood lead level. Subpart J_Rehabilitation 35.900 Purpose and applicability. 35.905 Definitions and other general requirements. 35.910 Notices and pamphlet. 35.915 Calculating rehabilitation costs, except for the CILP program.
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Subpart R_Methods and Standards for Lead-Based Paint Hazard Evaluation and Hazard Reduction Activities. 35.1300 Purpose and applicability. 35.1305 Definitions and other general requirements. 35.1310 References. 35.1315 Collection and laboratory analysis of samples. 35.1320 Lead-based paint inspections and risk assessments. 35.1325 Abatement. 35.1330 Interim controls. 35.1335 Standard treatments. 35.1340 Clearance. 35.1345 Occupant protection and worksite preparation. 35.1350 Safe work practices. 35.1355 Ongoing lead-based paint maintenance and reevaluation activities. Authority: 42 U.S.C. 3535(d), 4821, and 4851.
35.920 Calculating rehabilitation costs for the Flexible-Subsidy--CILP Program. 35.925 Examples of determining applicable requirements. 35.930 Evaluation and hazard reduction requirements. 35.935 Ongoing lead-based paint maintenance activities. 35.940 Special requirements for insular areas. Subpart K_Acquisition, Leasing, Support Services, or Operation. 35.1000 Purpose and applicability. 35.1005 Definitions and other general requirements. 35.1010 Notices and pamphlet. 35.1015 Visual assessment, paint stabilization, and maintenance. 35.1020 Funding for evaluation and hazard reduction. Subpart L_Public Housing Programs 35.1100 Purpose and applicability. 35.1105 Definitions and other general requirements. 35.1110 Notices and pamphlet. 35.1115 Evaluation. 35.1120 Hazard reduction. 35.1125 Evaluation and hazard reduction before acquisition and development. 35.1130 Child with an environmental intervention blood lead level. 35.1135 Eligible costs. 35.1140 Insurance coverage. Subpart M_Tenant-Based Rental Assistance 35.1200 Purpose and applicability. 35.1205 Definitions and other general requirements. 35.1210 Notices and pamphlet. 35.1215 Activities at initial and periodic inspections. 35.1220 Ongoing lead-based paint maintenance activities. 35.1225 Child with an environmental intervention blood lead level. Subparts N-Q [Reserved]
Subpart A_Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards Upon Sale or Lease of Residential Property
Source: 61 FR 9082, Mar. 6, 1996, unless otherwise noted. Redesignated at 64 FR 50201, Sept. 15, 1999.
Sec. 35.80 Purpose.
This subpart implements the provisions of 42 U.S.C. 4852d, which impose certain requirements on the sale or {[[Page 315]]} lease of target housing. Under this subpart, a seller or lessor of target housing shall disclose to the purchaser or lessee the presence of any known lead-based paint and/or lead-based paint hazards; provide available records and reports; provide the purchaser or lessee with a lead hazard information pamphlet; give purchasers a 10day opportunity to conduct a risk assessment or inspection; and attach specific disclosure and warning language to the sales or leasing
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contract before the purchaser or lessee is obligated under a contract to purchase or lease target housing.
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Sec. 35.86 Definitions.
The following definitions apply to this subpart. The Act means the Residential LeadBased Paint Hazard Reduction Act of 1992, 42 U.S.C. 4852d. Agent means any party who enters into a contract with a seller or lessor, including any party who enters into a contract with a representative of the seller or lessor, for the purpose of selling or leasing target housing. This term does not apply to purchasers or any purchaser's representative who receives all compensation from the purchaser. Available means in the possession of or reasonably obtainable by the seller or lessor at the time of the disclosure. Common area means a portion of a building generally accessible to all residents/users including, but not limited to, hallways, stairways, laundry and recreational rooms, playgrounds, community centers, and boundary fences. Contract for the purchase and sale of residential real property means any contract or agreement in which one party agrees to purchase an interest in real property on which there is situated one or more residential dwellings used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons. EPA means the Environmental Protection Agency. Evaluation means a risk assessment and/or inspection. Foreclosure means any of the various methods, statutory or otherwise, known in different jurisdictions, of enforcing payment of a debt, by the taking and selling of real property. Housing for the elderly means retirement communities or similar types of housing reserved for households composed of one or more persons 62 years of age or more at the time of initial occupancy. Inspection means: {[[Page 316]]} (1) A surface-by-surface investigation to determine the presence of lead-based paint as provided in section 302(c) of the
Sec. 35.82 Scope and applicability.
This subpart applies to all transactions to sell or lease target housing, including subleases, with the exception of the following: (a) Sales of target housing at foreclosure. (b) Leases of target housing that have been found to be lead-based paint free by an inspector certified under the Federal certification program or under a federally accredited State or tribal certification program. Until a Federal certification program or federally accredited State certification program is in place within the State, inspectors shall be considered qualified to conduct an inspection for this purpose if they have received certification under any existing State or tribal inspector certification program. The lessor has the option of using the results of additional test(s) by a certified inspector to confirm or refute a prior finding. (c) Short-term leases of 100 days or less, where no lease renewal or extension can occur. (d) Renewals of existing leases in target housing in which the lessor has previously disclosed all information required under SEC. 35.88 and where no new information described in SEC. 35.88 has come into the possession of the lessor. For the purposes of this paragraph, renewal shall include both renegotiation of existing lease terms and/or ratification of a new lease.
Sec. 35.84 Effective dates.
The requirements in this subpart take effect in the following manner: (a) For owners of more than four residential dwellings, the requirements shall take effect on September 6, 1996. (b) For owners of one to four residential dwellings, the requirements shall take effect on December 6, 1996.
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trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations. Reduction means measures designed to reduce or eliminate human exposure to leadbased paint hazards through methods including interim controls and abatement. Residential dwelling means: (1) A single-family dwelling, including attached structures such as porches and stoops; or (2) A single-family dwelling unit in a structure that contains more than one separate residential dwelling unit, and in which each such unit is used or occupied, or intended to be used or occupied, in whole or in part, as the residence of one or more persons. Risk assessment means an on-site investigation to determine and report the existence, nature, severity, and location of lead-based paint hazards in residential dwellings, including: (1) Information gathering regarding the age and history of the housing and occupancy by children under age 6; (2) Visual inspection; (3) Limited wipe sampling or other environmental sampling techniques; (4) Other activity as may be appropriate; and (5) Provision of a report explaining the results of the investigation. Seller means any entity that transfers legal title to target housing, in whole or in part, in return for consideration, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations. The term ``seller'' also includes: (1) An entity that transfers shares in a cooperatively owned project, in return for consideration; and (2) An entity that transfers its interest in a leasehold, in jurisdictions or circumstances where it is legally permissible to separate the fee title from the title to the improvement, in return for consideration. Target housing means any housing constructed prior to 1978, except housing
Lead-Based Paint Poisoning and Prevention Act [42 U.S.C. 4822], and (2) The provision of a report explaining the results of the investigation. Lead-based paint means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight. Lead-based paint free housing means target housing that has been found to be free of paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight. Lead-based paint hazard means any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or leadcontaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects as established by the appropriate Federal agency. Lessee means any entity that enters into an agreement to lease, rent, or sublease target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations. Lessor means any entity that offers target housing for lease, rent, or sublease, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations. Owner means any entity that has legal title to target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations, except where a mortgagee holds legal title to property serving as collateral for a mortgage loan, in which case the owner would be the mortgagor. Purchaser means an entity that enters into an agreement to purchase an interest in target housing, including but not limited to individuals, partnerships, corporations,
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for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing) or any 0-bedroom dwelling. TSCA means the Toxic Substances Control Act, 15 U.S.C. 2601. {[[Page 317]]} 0-bedroom dwelling means any residential dwelling in which the living area is not separated from the sleeping area. The term includes efficiencies, studio apartments, dormitory housing, military barracks, and rentals of individual rooms in residential dwellings.
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Sec. 35.88 Disclosure requirements for sellers and lessors.
(a) The following activities shall be completed before the purchaser or lessee is obligated under any contract to purchase or lease target housing that is not otherwise an exempt transaction pursuant to SEC. 35.82. Nothing in this section implies a positive obligation on the seller or lessor to conduct any evaluation or reduction activities. (1) The seller or lessor shall provide the purchaser or lessee with an EPA-approved lead hazard information pamphlet. Such pamphlets include the EPA document entitled Protect Your Family From Lead in Your Home (EPA -747-K-94-001) or an equivalent pamphlet that has been approved for use in that State by EPA. (2) The seller or lessor shall disclose to the purchaser or lessee the presence of any known lead-based paint and/or lead-based paint hazards in the target housing being sold or leased. The seller or lessor shall also disclose any additional information available concerning the known lead-based paint and/or lead-based paint hazards, such as the basis for the determination that lead-based paint and/or lead-based paint hazards exist, the location of the lead-based paint and/or leadbased paint hazards, and the condition of the painted surfaces. (3) The seller or lessor shall disclose to each agent the presence of any known lead-
based paint and/or lead-based paint hazards in the target housing being sold or leased and the existence of any available records or reports pertaining to lead-based paint and/or lead-based paint hazards. The seller or lessor shall also disclose any additional information available concerning the known lead-based paint and/or leadbased paint hazards, such as the basis for the determination that leadbased paint and/or lead-based paint hazards exist, the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces. (4) The seller or lessor shall provide the purchaser or lessee with any records or reports available to the seller or lessor pertaining to lead-based paint and/or leadbased paint hazards in the target housing being sold or leased. This requirement includes records and reports regarding common areas. This requirement also includes records and reports regarding other residential dwellings in multifamily target housing, provided that such information is part of an evaluation or reduction of leadbased paint and/or lead-based paint hazards in the target housing as a whole. (b) If any of the disclosure activities identified in paragraph (a) of this section occurs after the purchaser or lessee has provided an offer to purchase or lease the housing, the seller or lessor shall complete the required disclosure activities prior to accepting the purchaser's or lessee's offer and allow the purchaser or lessee an opportunity to review the information and possibly amend the offer. (Approved by the Office of Management and Budget under control number 2070-0151) [61 FR 9082, Mar. 6, 1996, as amended at 64 FR 14382, Mar. 25, 1999]
Sec. 35.90 Opportunity to conduct an evaluation.
(a) Before a purchaser is obligated under any contract to purchase target housing, the seller shall permit the purchaser a 10-day period (unless the parties mutually
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indicating no knowledge of the presence of lead-based paint and/ or lead-based paint hazards. The seller shall also provide any additional information available concerning the known lead-based paint and/or lead-based paint hazards, such as the basis for the determination that leadbased paint and/or lead-based paint hazards exist, the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces. (3) A list of any records or reports available to the seller pertaining to leadbased paint and/or lead-based paint hazards in the housing that have been provided to the purchaser. If no such records or reports are available, the seller shall so indicate. (4) A statement by the purchaser affirming receipt of the information set out in paragraphs (a)(2) and (a)(3) of this section and the lead hazard information pamphlet required under section 15 U.S.C. 2696. (5) A statement by the purchaser that he/she has either: (i) Received the opportunity to conduct the risk assessment or inspection required by SEC. 35.90(a); or (ii) Waived the opportunity. (6) When any agent is involved in the transaction to sell target housing on behalf of the seller, a statement that: (i) The agent has informed the seller of the seller's obligations under 42 U.S.C. 4852d; and (ii) The agent is aware of his/her duty to ensure compliance with the requirements of this subpart. (7) The signatures of the sellers, agents, and purchasers, certifying to the accuracy of their statements, to the best of their knowledge, along with the dates of signature. (b) Lessor requirements. Each contract to lease target housing shall include, as an attachment or within the contract, the following elements, in the language of the contract (e.g., English, Spanish): (1) A Lead Warning Statement with the following language:
agree, in writing, upon a different period of time) to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards. (b) Notwithstanding paragraph (a) of this section, a purchaser may waive the opportunity to conduct the risk assessment or inspection by so indicating in writing. (Approved by the Office of Management and Budget under control number 2070-0151) [61 FR 9082, Mar. 6, 1996, as amended at 64 FR 14382, Mar. 25, 1999] {[[Page 318]]}
Sec. 35.92 Certification and acknowledgment of disclosure.
(a) Seller requirements. Each contract to sell target housing shall include an attachment containing the following elements, in the language of the contract (e.g., English, Spanish): (1) A Lead Warning Statement consisting of the following language: Every purchaser of any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The seller of any interest in residential real property is required to provide the buyer with any information on lead-based paint hazards from risk assessments or inspections in the seller's possession and notify the buyer of any known lead-based paint hazards. A risk assessment or inspection for possible leadbased paint hazards is recommended prior to purchase. (2) A statement by the seller disclosing the presence of known leadbased paint and/or lead-based paint hazards in the target housing being sold or
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Housing built before 1978 may contain lead-based paint. Lead from paint, paint chips, and dust can pose health hazards if not managed properly. Lead exposure is especially harmful to young children and pregnant women. Before renting pre-1978 housing, lessors must disclose the presence of lead-based paint and/or lead-based paint hazards in the dwelling. Lessees must also receive a federally approved pamphlet on lead poisoning prevention. (2) A statement by the lessor disclosing the presence of known leadbased paint and/or lead-based paint hazards in the target housing being leased or indicating no knowledge of the presence of lead-based paint and/or lead-based paint hazards. The lessor shall also disclose any additional information available concerning the known lead-based paint and/or leadbased paint hazards, such as the basis for the determination that lead-based paint and/or lead-based paint hazards exist in the housing, the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces. (3) A list of any records or reports available to the lessor pertaining to leadbased paint and/or lead-based paint hazards in the housing that have {[[Page 319]]} been provided to the lessee. If no such records or reports are available, the lessor shall so indicate. (4) A statement by the lessee affirming receipt of the information set out in paragraphs (b)(2) and (b)(3) of this section and the lead hazard information pamphlet required under 15 U.S.C. 2696. (5) When any agent is involved in the transaction to lease target housing on behalf of the lessor, a statement that: (i) The agent has informed the lessor of the lessor's obligations under 42 U.S.C. 4852d; and (ii) The agent is aware of his/her duty to ensure compliance with the requirements of this subpart. (6) The signatures of the lessors, agents, and lessees certifying to the accuracy of their statements to the best of their
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knowledge, along with the dates of signature. (c) Retention of certification and acknowledgment information. (1) The seller, and any agent, shall retain a copy of the completed attachment required under paragraph (a) of this section for no less than 3 years from the completion date of the sale. The lessor, and any agent, shall retain a copy of the completed attachment or lease contract containing the information required under paragraph (b) of this section for no less than 3 years from the commencement of the leasing period. (2) This recordkeeping requirement is not intended to place any limitations on civil suits under the Act, or to otherwise affect a lessee's or purchaser's rights under the civil penalty provisions of 42 U.S.C. 4852d(b)(3). (d) The seller, lessor, or agent shall not be responsible for the failure of a purchaser's or lessee's legal representative (where such representative receives all compensation from the purchaser or lessee) to transmit disclosure materials to the purchaser or lessee, provided that all required parties have completed and signed the necessary certification and acknowledgment language required under paragraphs (a) and (b) of this section. (Approved by the Office of Management and Budget under control number 2070-0151) [61 FR 9082, Mar. 6, 1996, as amended at 64 FR 14382, Mar. 25, 1999]
Sec. 35.94 Agent responsibilities.
(a) Each agent shall ensure compliance with all requirements of this subpart. To ensure compliance, the agent shall: (1) Inform the seller or lessor of his/her obligations under SEC. Sec. 35.88, 35.90, and 35.92. (2) Ensure that the seller or lessor has performed all activities required under SEC. Sec. 35.88, 35.90, and 35.92, or personally ensure compliance with the requirements of SEC. Sec. 35.88, 35.90, and 35.92.
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penalty for each violation applicable under 15 U.S.C. 2615 shall be not more than $10,000.
(b) If the agent has complied with paragraph (a)(1) of this section, the agent shall not be liable for the failure to disclose to a purchaser or lessee the presence of leadbased paint and/or lead-based paint hazards known by a seller or lessor but not disclosed to the agent. (Approved by the Office of Management and Budget under control number 2070-0151) [61 FR 9082, Mar. 6, 1996, as amended at 64 FR 14382, Mar. 25, 1999]
Sec. 35.98 Impact on State and local requirements.
Nothing in this subpart shall relieve a seller, lessor, or agent from any responsibility for compliance with State or local laws, ordinances, codes, or regulations governing notice or disclosure of known lead-based paint and/or lead-based paint hazards. Neither HUD nor EPA assumes any responsibility for ensuring compliance with such State or local requirements.
Sec. 35.96 Enforcement.
(a) Any person who knowingly fails to comply with any provision of this subpart shall be subject to civil monetary penalties in accordance with the provisions of 42 U.S.C. 3545 and 24 CFR part 30. (b) The Secretary is authorized to take such action as may be necessary to enjoin any violation of this subpart in the appropriate Federal district court. (c) Any person who knowingly violates the provisions of this subpart shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual. (d) In any civil action brought for damages pursuant to 42 U.S.C. 4852d(b)(3), the appropriate court may award court costs to the party commencing such action, together with reasonable attorney fees and any expert witness fees, if that party prevails. (e) Failure or refusal to comply with SEC. Sec. 35.88 (disclosure requirements for sellers and lessors), SEC. 35.90 (opportunity to conduct an evaluation), SEC. 35.92 (certification and acknowledgment of disclosure), or SEC. 35.94 (agent responsibilities) is a violation of 42 U.S.C. {[[Page 320]]} 4852d(b)(5) and of TSCA section 409 (15 U.S.C. 2689). (f) Violators may be subject to civil and criminal sanctions pursuant to TSCA section 16 (15 U.S.C. 2615) for each violation. For purposes of enforcing this subpart, the
Subpart B_General LeadBased Paint Requirements and Definitions for All Programs.
Source: 64 FR 50202, Sept. 15, 1999, unless otherwise noted.
Sec. 35.100 Purpose and applicability.
(a) Purpose. The requirements of subparts B through R of this part are promulgated to implement the Lead-Based Paint Poisoning Prevention Act, as amended (42 U.S.C. 4821 et seq.), and the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851 et seq.). (b) Applicability--(1) This subpart. This subpart applies to all target housing that is federally owned and target housing receiving Federal assistance to which subparts C, D, F through M, and R of this part apply, except where indicated. (2) Other subparts--(i) General. Subparts C, D, and F through M of this part each set forth requirements for a specific type of Federal housing activity or assistance, such as multifamily mortgage insurance, project-based rental assistance, rehabilitation, or tenant-based rental assistance. Subpart R of this part provides standards and methods for activities required
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in subparts B, C, D, and F through M of this part. (ii) Application to programs. Most HUD housing programs are covered by only one subpart of this part, but some programs can be used for more than one type of assistance and therefore are covered by more than one subpart of this part. A current list of programs covered by each subpart of this part is available on the internet at www.hud.gov, or by mail from the National Lead Information Center at 1-800-424LEAD. Examples of flexible programs that can provide more than one type of assistance are the HOME Investment Partnerships program, the Community Development Block Grant program, and the Indian Housing Block Grant Program. Grantees, participating jurisdictions, Indian tribes and other entities administering such flexible programs must decide which subpart applies to the type of assistance being provided to a particular dwelling unit or residential property. (iii) Application to dwelling units. In some cases, more than one type of assistance may be provided to the same dwelling unit. In such cases, the subpart or section with the most protective initial hazard reduction requirements applies. Paragraph (c) of this section provides a table that lists the subparts and sections of this part in order from the most protective to the least protective. (This list is based only on the requirements for initial hazard reduction. The summary of requirements on this list is not a complete list of requirements. It is necessary to refer to the applicable subparts and sections to determine all applicable requirements.) (iv) Example. A multifamily building has 100 dwelling units and was built in 1965. The property is financed with HUD multifamily mortgage insurance. This building is covered by subpart G of this part (see SEC. 35.625--Multifamily mortgage insurance for properties constructed after 1959), which is at protectiveness level 5 in the table set forth in paragraph (c) of this section. In the same building, however, 50 of the 100 dwelling units are receiving
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project-based assistance, and the average annual assistance per assisted unit is $5,500. Those 50 units, and common areas servicing those units, are covered by the requirements of subpart H of {[[Page 321]]} this part (see SEC. 35.715--Projectbased assistance for multifamily properties receiving more than $5,000 per unit), which are at protectiveness level 3. Therefore, because level 3 is a higher level of protectiveness than level 5, the units receiving project-based assistance, and common areas servicing those units, must comply at level 3, while the rest of the building can be operated at level 5. The owner may choose to operate the entire building at level 3 for simplicity. (c) Table One. The following table lists the subparts and sections of this part applying to HUD programs in order from most protective to least protective hazard reduction requirements. The summary of hazard reduction requirements in this table is not complete. Readers must refer to relevant subpart for complete requirements. -------------------------------------------------------------------------------------------------------------Hazard reduction Level of protection Subpart, section, and type of assistance requirements -------------------------------------------------------------------------------------------------------------1.............................. Subpart L, Public housing. Subpart G, SEC. Full abatement of lead35.630, Multifamily mortgage insurance for based paint. conversions and major rehabilitations. 2.............................. Subpart J, SEC. 35.930(d), Properties receiving Abatement of lead-based more than $25,000 per unit in rehabilitation paint hazards. assistance. 3.............................. Subpart G, SEC. 35.620, Multifamily mortgage Interim controls. insurance for properties constructed before 1960,
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application of the effective date to specific programs. Before September 15, 2000, a designated party has the option of following the procedures in subparts B through R of this part, or complying with current HUD lead-based paint regulations.
other than conversions and major rehabilitations. Subpart H, SEC. 35.715, Project-based assistance for multifamily properties receiving more than $5,000 per unit. Subpart I, HUD-owned multifamily property. Subpart J, SEC. 35.930(c), Properties receiving more than $5,000 and up to $25,000 per unit in rehabilitation assistance. 4.............................. Subpart F, HUDowned single family properties. Paint stabilization. Subpart H, SEC. 35.720, Project-based rental assistance for multifamily properties receiving up to $5,000 per unit and single family properties. Subpart K, Acquisition, leasing, support services, or operation. Subpart M, Tenant-based rental assistance. 5.............................. Subpart G, SEC. 35.625, Multifamily mortgage Ongoing lead-based paint insurance for properties constructed after 1959. maintenance. 6.............................. Subpart J, SEC. 35.930(b), Properties receiving Safe work practices during up to and including $5,000 in rehabilitation rehabilitation. assistance. --------------------------------------------------------------------------------------------------------------
Sec. 35.106 Information collection requirements.
The information collection requirements contained in this part have been approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 2501-3520), and have been assigned OMB control number 2539-0009. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a valid control number.
Sec. 35.110 Definitions.
Abatement means any set of measures designed to permanently eliminate leadbased paint or lead-based paint hazards (see definition of ``permanent''). Abatement includes: (1) The removal of lead-based paint and dust-lead hazards, the permanent enclosure or encapsulation of lead-based paint, the replacement of components or fixtures painted with lead-based paint, and the removal or permanent covering of soillead hazards; and (2) All preparation, cleanup, disposal, and post abatement clearance testing activities associated with such measures. {[[Page 322]]} Act means the Lead-Based Paint Poisoning Prevention Act, as amended, 42 U.S.C. 4822 et seq. Bare soil means soil or sand not covered by grass, sod, other live ground covers, wood chips, gravel, artificial turf, or similar covering. Certified means licensed or certified to perform such activities as risk assessment, lead-based paint inspection, or abatement supervision, either by a State or Indian tribe
Sec. 35.105 Effective dates.
The effective date for subparts B through R of this part is September 15, 2000, except that the effective date for prohibited methods of paint removal, described in SEC. 35.140, is November 15, 1999. Subparts F through M of this part provide further information on the
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with a lead-based paint certification program authorized by the Environmental Protection Agency (EPA), or by the EPA, in accordance with 40 CFR part 745, subparts L or Q. Chewable surface means an interior or exterior surface painted with lead-based paint that a young child can mouth or chew. A chewable surface is the same as an ``accessible surface'' as defined in 42 U.S.C. 4851b(2)). Hard metal substrates and other materials that cannot be dented by the bite of a young child are not considered chewable. Clearance examination means an activity conducted following leadbased paint hazard reduction activities to determine that the hazard reduction activities are complete and that no soil-lead hazards or settled dust-lead hazards, as defined in this part, exist in the dwelling unit or worksite. The clearance process includes a visual assessment and collection and analysis of environmental samples. Dustlead standards for clearance are found at SEC. 35.1320. CILP recipient means an owner of a multifamily property which is undergoing rehabilitation funded by the Flexible Subsidy-Capital Improvement Loan Program (CILP). Common area means a portion of a residential property that is available for use by occupants of more than one dwelling unit. Such an area may include, but is not limited to, hallways, stairways, laundry and recreational rooms, playgrounds, community centers, on-site day care facilities, garages and boundary fences. Component means an architectural element of a dwelling unit or common area identified by type and location, such as a bedroom wall, an exterior window sill, a baseboard in a living room, a kitchen floor, an interior window sill in a bathroom, a porch floor, stair treads in a common stairwell, or an exterior wall. Composite sample means a collection of more than one sample of the same medium (e.g., dust, soil or paint) from the same type of surface (e.g., floor, interior window sill, or window trough), such that
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multiple samples can be analyzed as a single sample. Containment means the physical measures taken to ensure that dust and debris created or released during lead-based paint hazard reduction are not spread, blown or tracked from inside to outside of the worksite. Designated party means a Federal agency, grantee, subrecipient, participating jurisdiction, housing agency, CILP recipient, Indian tribe, tribally designated housing entity (TDHE), sponsor or property owner responsible for complying with applicable requirements. Deteriorated paint means any interior or exterior paint or other coating that is peeling, chipping, chalking or cracking, or any paint or coating located on an interior or exterior surface or fixture that is otherwise damaged or separated from the substrate. Dry sanding means sanding without moisture and includes both hand and machine sanding. Dust-lead hazard means surface dust that contains a dust-lead loading (area concentration of lead) at or exceeding the levels promulgated by the EPA pursuant to section 403 of the Toxic Substances Control Act or, if such levels are not in effect, the standards in SEC. 35.1320. Dwelling unit means a: (1) Single-family dwelling, including attached structures such as porches and stoops; or (2) Housing unit in a structure that contains more than 1 separate housing unit, and in which each such unit is used or occupied, or intended to be used or occupied, in whole or in part, as the home or separate living quarters of 1 or more persons. Encapsulation means the application of a covering or coating that acts as a barrier between the lead-based paint and the environment and that relies for its durability on adhesion between the {[[Page 323]]} encapsulant and the painted surface, and on the integrity of the existing bonds between paint layers and between the paint and the substrate. Encapsulation may be
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Federally owned property means residential property owned or managed by a Federal agency, or for which a Federal agency is a trustee or conservator. Firm commitment means a valid commitment issued by HUD or the Federal Housing Commissioner setting forth the terms and conditions upon which a mortgage will be insured or guaranteed. Friction surface means an interior or exterior surface that is subject to abrasion or friction, including, but not limited to, certain window, floor, and stair surfaces. g means gram, mg means milligram (thousandth of a gram), and [mu]g means microgram (millionth of a gram). Grantee means any State or local government, Indian tribe, IHBG recipient, insular area or nonprofit organization that has been designated by HUD to administer Federal housing assistance under a program covered by subparts J and K of this part, except the HOME program or the Flexible Subsidy-Capital Improvement Loan Program (CILP). Hard costs of rehabilitation means: (1) Costs to correct substandard conditions or to meet applicable local rehabilitation standards; (2) Costs to make essential improvements, including energy-related repairs, and those necessary to permit use by persons with disabilities; and costs to repair or replace major housing systems in danger of failure; and (3) Costs of non-essential improvements, including additions and alterations to an existing structure; but (4) Hard costs do not include administrative costs (e.g., overhead for administering a rehabilitation program, processing fees, etc.). Hazard reduction means measures designed to reduce or eliminate human exposure to lead-based paint hazards through methods including interim controls or abatement or a combination of the two. HEPA vacuum means a vacuum cleaner device with an included highefficiency particulate air (HEPA) filter through which the contaminated air flows,
used as a method of abatement if it is designed and performed so as to be permanent (see definition of ``permanent''). Enclosure means the use of rigid, durable construction materials that are mechanically fastened to the substrate in order to act as a barrier between lead-based paint and the environment. Enclosure may be used as a method of abatement if it is designed to be permanent (see definition of ``permanent''). Environmental intervention blood lead level means a confirmed concentration of lead in whole blood equal to or greater than 20 [mu]g/ dL (micrograms of lead per deciliter) for a single test or 15-19 [mu]g/ dL in two tests taken at least 3 months apart. Evaluation means a risk assessment, a lead hazard screen, a leadbased paint inspection, paint testing, or a combination of these to determine the presence of lead-based paint hazards or leadbased paint. Expected to reside means there is actual knowledge that a child will reside in a dwelling unit reserved for the elderly or designated exclusively for persons with disabilities. If a resident woman is known to be pregnant, there is actual knowledge that a child will reside in the dwelling unit. Federal agency means the United States or any executive department, independent establishment, administrative agency and instrumentality of the United States, including a corporation in which all or a substantial amount of the stock is beneficially owned by the United States or by any of these entities. The term ``Federal agency'' includes, but is not limited to, Rural Housing Service (formerly Rural Housing and Community Development Service that was formerly Farmer's Home Administration), Resolution Trust Corporation, General Services Administration, Department of Defense, Department of Veterans Affairs, Department of the Interior, and Department of Transportation.
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operated in accordance with the instructions of its manufacturer. A HEPA filter is one that captures at least 99.97 percent of airborne particles of at least 0.3 micrometers in diameter. {[[Page 324]]} Housing for the elderly means retirement communities or similar types of housing reserved for households composed of one or more persons 62 years of age or more, or other age if recognized as elderly by a specific Federal housing assistance program. Housing receiving Federal assistance means housing which is covered by an application for HUD mortgage insurance, receives housing assistance payments under a program administered by HUD, or otherwise receives more than $5,000 in project-based assistance under a Federal housing program administered by an agency other than HUD. HUD means the United States Department of Housing and Urban Development. HUD-owned property means residential property owned or managed by HUD, or for which HUD is a trustee or conservator. Impact surface means an interior or exterior surface that is subject to damage by repeated sudden force, such as certain parts of door frames. Indian Housing Block Grant (IHBG) recipient means a tribe or a tribally designated housing entity (TDHE) receiving IHBG funds. Indian tribe means a tribe as defined in the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101 et seq.) Inspection (See Lead-based paint inspection). Insular areas means Guam, the Northern Mariana Islands, the United States Virgin Islands and American Samoa. Interim controls means a set of measures designed to reduce temporarily human exposure or likely exposure to leadbased paint hazards. Interim controls include, but are not limited to, repairs, painting, temporary containment, specialized cleaning, clearance, ongoing
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lead-based paint maintenance activities, and the establishment and operation of management and resident education programs. Interior window sill means the portion of the horizontal window ledge that protrudes into the interior of the room, adjacent to the window sash when the window is closed. The interior window sill is sometimes referred to as the window stool. Lead-based paint means paint or other surface coatings that contain lead equal to or exceeding 1.0 milligram per square centimeter or 0.5 percent by weight or 5,000 parts per million (ppm) by weight. Lead-based paint hazard means any condition that causes exposure to lead from dust-lead hazards, soil-lead hazards, or leadbased paint that is deteriorated or present in chewable surfaces, friction surfaces, or impact surfaces, and that would result in adverse human health effects. Lead-based paint inspection means a surface-by-surface investigation to determine the presence of lead-based paint and the provision of a report explaining the results of the investigation. Lead hazard screen means a limited risk assessment activity that involves paint testing and dust sampling and analysis as described in 40 CFR 745.227(c) and soil sampling and analysis as described in 40 CFR 745.227(d). Mortgagee means a lender of a mortgage loan. Mortgagor means a borrower of a mortgage loan. Multifamily property means a residential property containing five or more dwelling units. Occupant means a person who inhabits a dwelling unit. Owner means a person, firm, corporation, nonprofit organization, partnership, government, guardian, conservator, receiver, trustee, executor, or other judicial officer, or other entity which, alone or with others, owns, holds, or controls the freehold or leasehold title or part of the title to property, with or without
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United States Housing Act of 1937 (42 U.S.C. 1437 et seq.), but not including housing assisted under section 8 of the 1937 Act. Reevaluation means a visual assessment of painted surfaces and limited dust and soil sampling conducted periodically following leadbased paint hazard reduction where lead-based paint is still present. Rehabilitation means the improvement of an existing structure through alterations, incidental additions or enhancements. Rehabilitation includes repairs necessary to correct the results of deferred maintenance, the replacement of principal fixtures and components, improvements to increase the efficient use of energy, and installation of security devices. Replacement means a strategy of abatement that entails the removal of building components that have surfaces coated with lead-based paint and the installation of new components free of leadbased paint. Residential property means a dwelling unit, common areas, building exterior surfaces, and any surrounding land, including outbuildings, fences and play equipment affixed to the land, belonging to an owner and available for use by residents, but not including land used for agricultural, commercial, industrial or other nonresidential purposes, and not including paint on the pavement of parking lots, garages, or roadways. Risk assessment means: (1) An on-site investigation to determine the existence, nature, severity, and location of lead-based paint hazards; and (2) The provision of a report by the individual or firm conducting the risk assessment explaining the results of the investigation and options for reducing leadbased paint hazards. Single family property means a residential property containing one through four dwelling units. Single room occupancy (SRO) housing means housing consisting of zero-bedroom
actually possessing it. The definition includes a vendee who possesses the title, but does not include a mortgagee or an owner of a reversionary interest under a ground rent lease. Paint stabilization means repairing any physical defect in the substrate of a painted surface that is causing paint deterioration, removing loose paint and other material from the surface to be treated, and applying a new protective coating or paint. Paint testing means the process of determining, by a certified leadbased paint inspector or risk assessor, the {[[Page 325]]} presence or the absence of lead-based paint on deteriorated paint surfaces or painted surfaces to be disturbed or replaced. Paint removal means a method of abatement that permanently eliminates leadbased paint from surfaces. Painted surface to be disturbed means a paint surface that is to be scraped, sanded, cut, penetrated or otherwise affected by rehabilitation work in a manner that could potentially create a lead-based paint hazard by generating dust, fumes, or paint chips. Participating jurisdiction means any State or local government that has been designated by HUD to administer a HOME program grant. Permanent means an expected design life of at least 20 years. Play area means an area of frequent soil contact by children of less than 6 years of age, as indicated by the presence of play equipment (e.g. sandboxes, swing sets, sliding boards, etc.) or toys or other children's possessions, observations of play patterns, or information provided by parents, residents or property owners. Project-based rental assistance means Federal rental assistance that is tied to a residential property with a specific location and remains with that particular location throughout the term of the assistance. Public health department means a State, tribal, county or municipal public health department or the Indian Health Service. Public housing development means a residential property assisted under the
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dwelling units that may contain food preparation or sanitary facilities or both (see Zero-bedroom dwelling). Soil-lead hazard means bare soil on residential property that contains lead equal to or exceeding levels promulgated by the U.S. Environmental Protection Agency pursuant to section 403 of the Toxic Substances Control Act or, if such levels are not in effect, the following levels: 400 [mu]g/g in play areas; and 2000 [mu]g/g in other areas with bare soil that total more than 9 square feet (0.8 square meters) per residential property. Sponsor means mortgagor (borrower). Subrecipient means any nonprofit organization selected by the grantee or participating jurisdiction to administer all or a portion of the Federal rehabilitation assistance or other non-rehabilitation assistance, or any such organization selected by a subrecipient of {[[Page 326]]} the grantee or participating jurisdiction. An owner or developer receiving Federal rehabilitation assistance or other assistance for a residential property is not considered a subrecipient for the purposes of carrying out that project. Standard treatments means a series of hazard reduction measures designed to reduce all lead-based paint hazards in a dwelling unit without the benefit of a risk assessment or other evaluation. Substrate means the material directly beneath the painted surface out of which the components are constructed, including wood, drywall, plaster, concrete, brick or metal. Target housing means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless a child of less than 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any zerobedroom dwelling. In the case of jurisdictions which banned the sale or use of lead-based paint prior to 1978, HUD may designate an earlier date.
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Tenant means the individual named as the lessee in a lease, rental agreement or occupancy agreement for a dwelling unit. Visual assessment means looking for, as applicable: (1) Deteriorated paint; (2) Visible surface dust, debris and residue as part of a risk assessment or clearance examination; or (3) The completion or failure of a hazard reduction measure. Wet sanding or wet scraping means a process of removing loose paint in which the painted surface to be sanded or scraped is kept wet to minimize the dispersal of paint chips and airborne dust. Window trough means the area between the interior window sill (stool) and the storm window frame. If there is no storm window, the window trough is the area that receives both the upper and lower window sashes when they are both lowered. Worksite means an interior or exterior area where lead-based paint hazard reduction activity takes place. There may be more than one worksite in a dwelling unit or at a residential property. Zero-bedroom dwelling means any residential dwelling in which the living areas are not separated from the sleeping area. The term includes efficiencies, studio apartments, dormitory or single room occupancy housing, military barracks, and rentals of individual rooms in residential dwellings (see Single room occupancy (SRO)).
Sec. 35.115 Exemptions.
(a) Subparts B through R of this part do not apply to the following: (1) A residential property for which construction was completed on or after January 1, 1978, or, in the case of jurisdictions which banned the sale or residential use of lead-containing paint prior to 1978, an earlier date as HUD may designate (see SEC. 35.160). (2) A zero-bedroom dwelling unit, including a single room occupancy (SRO) dwelling unit.
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requirements of subparts B through R of this part shall not apply. This exemption applies only to repairs necessary to respond to the emergency. The requirements of subparts B through R of this part shall apply to any work undertaken subsequent to, or above and beyond, such emergency actions. (10) If a Federal law enforcement agency has seized a residential property and owns the property for less than 270 days, SEC. Sec. 35.210 and 35.215 shall not apply to the property. (11) The requirements of subpart K of this part do not apply if the assistance being provided is emergency rental assistance or foreclosure prevention assistance, provided that this exemption shall expire for a dwelling unit no later than 100 days after the initial payment or assistance. (12) Performance of an evaluation or lead-based paint hazard reduction or leadbased paint abatement on an exterior painted surface as required under this part may be delayed for a reasonable time during a period when weather conditions are unsuitable for conventional construction activities. (13) Where abatement of lead-based paint hazards or lead-based paint is required by this part and the property is listed or has been determined to be eligible for listing in the National Register of Historic Places or contributing to a National Register Historic District, the designated party may, if requested by the State Historic Preservation Office, conduct interim controls in accordance with SEC. 35.1330 instead of abatement. If interim controls are conducted, ongoing lead-based paint maintenance and reevaluation shall be conducted as required by the applicable subpart of this part in accordance with SEC. 35.1355. (b) For the purposes of subpart C of this part, each Federal agency other than HUD will determine whether appropriations are sufficient to implement this rule. If appropriations are not sufficient, subpart C of this part shall not apply to that Federal agency. If appropriations are sufficient, subpart C of this part shall apply.
(3) Housing for the elderly, or a residential property designated exclusively for persons with disabilities; except this exemption shall not apply if a child less than age 6 resides or is expected to reside in the dwelling unit (see definitions of ``housing for the elderly'' and ``expected to reside'' in SEC. 35.110). (4) Residential property found not to have lead-based paint by a lead-based paint inspection conducted in accordance with SEC. 35.1320(a) (for more information regarding inspection procedures consult the 1997 edition of Chapter 7 of the HUD Guidelines). Results of additional test(s) by a certified lead-based paint inspector may be used to confirm or refute a prior finding. (5) Residential property in which all lead-based paint has been identified, removed, and clearance has been achieved in accordance with 40 CFR 745.227(b)(e) before September 15, 2000, or in accordance with SEC. Sec. 35.1320, 35.1325 and 35.1340 on or after September 15, 2000. This exemption does not apply to residential property where enclosure or encapsulation has been used as a method of abatement. (6) An unoccupied dwelling unit or residential property that is to be demolished, provided the dwelling unit or property will remain unoccupied until demolition. {[[Page 327]]} (7) A property or part of a property that is not used and will not be used for human residential habitation, except that spaces such as entryways, hallways, corridors, passageways or stairways serving both residential and nonresidential uses in a mixed-use property shall not be exempt. (8) Any rehabilitation that does not disturb a painted surface. (9) For emergency actions immediately necessary to safeguard against imminent danger to human life, health or safety, or to protect property from further structural damage (such as when a property has been damaged by a natural disaster, fire, or structural collapse), occupants shall be protected from exposure to lead in dust and debris generated by such emergency actions to the extent practicable, and the
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Sec. 35.120 Options.
(a) Standard treatments. Where interim controls are required by this part, the designated party has the option to presume that lead-based paint or lead-based paint hazards or both are present throughout the residential property. In such a case, evaluation is not required. Standard treatments shall then be conducted in accordance with SEC. 35.1335 on all applicable surfaces, including soil. Standard treatments are completed only when clearance is achieved in accordance with SEC. 35.1340. (b) Abatement. Where abatement is required by this part, the designated party may presume that lead-based paint or leadbased paint hazards or both are present throughout the residential property. In such a case, evaluation is not required. Abatement shall then be conducted on all applicable surfaces, including soil, in accordance with SEC. 35.1325, and completed when clearance is achieved in accordance with SEC. 35.1340. This option is not available in public housing, where inspection is required. (c) Lead hazard screen. Where a risk assessment is required, the designated party may choose first to conduct a lead hazard screen in accordance with SEC. 35.1320(b). If the results of the lead hazard screen indicate the need for a full risk assessment (e.g., if the environmental measurements exceed levels established for lead hazard screens in SEC. 35.1320(b)(2)), a complete risk assessment shall be conducted. Environmental samples collected for the lead {[[Page 328]]} hazard screen may be used in the risk assessment. If the results of the lead hazard screen do not indicate the need for a followup risk assessment, a risk assessment is not required. (d) Paint testing. Where paint stabilization or interim controls of deteriorated paint surfaces are required by this rule, the designated party has the option to conduct paint testing of all surfaces with non-
intact paint. If paint testing indicates the absence of lead-based paint on a specific surface, paint stabilization or interim controls are not required on that surface.
Sec. 35.125 Notice of evaluation and hazard reduction activities.
The following activities shall be conducted if notice is required by subparts D and F through M of this part. (a) Notice of evaluation or presumption. When evaluation is undertaken and lead-based paint or lead-based paint hazards are found to be present, or if a presumption is made that lead-based paint or leadbased paint hazards are present in accordance with the options described in SEC. 35.120, the designated party shall provide a notice to occupants within 15 calendar days of the date when the designated party receives the report or makes the presumption. (1) The notice of the evaluation shall include: (i) A summary of the nature, scope and results of the evaluation; (ii) A contact name, address and telephone number for more information, and to obtain access to the actual evaluation report; and (iii) The date of the notice. (2) The notice of presumption shall include: (i) The nature and scope of the presumption; (ii) A contact name, address and telephone number for more information; and (iii) The date of the notice. (b) Notice of hazard reduction activity. When hazard reduction activities are undertaken, each designated party shall: (1) Provide a notice to occupants no more than 15 calendar days after the hazard reduction activities have been completed. Notice of hazard reduction shall include, but not be limited to: (i) A summary of the nature, scope and results (including clearance), of the hazard reduction activities.
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developed by EPA, HUD and the Consumer Product Safety Commission pursuant to section 406 of the Toxic Substances Control Act (15 U.S.C. 2686), or an EPA-approved alternative; except that the designated party need not provide a lead hazard information pamphlet if the designated party can demonstrate that the pamphlet has already been provided in accordance with the lead-based paint notification and disclosure requirements at SEC. 35.88(a)(1), or 40 CFR 745.107(a)(1) or in accordance with the requirements for hazard education before renovation at 40 CFR part 745, subpart E.
(ii) A contact name, address and telephone number for more information; and (iii) Available information on the location of any remaining leadbased paint in the rooms, spaces or areas where hazard reduction activities were conducted, on a surface-by-surface basis; (2) Update the notice, based on reevaluation of the residential property and as any additional hazard reduction work is conducted. (c) Availability of notices of evaluation, presumption, and hazard reduction activities. (1) The notices of evaluation, presumption, and hazard reduction shall be of a size and type that is easily read by occupants. (2) To the extent practicable, each notice shall be made available, upon request, in a format accessible to persons with disabilities (e.g., Braille, large type, computer disk, audio tape). (3) Each notice shall be provided in the occupants' primary language or in the language of the occupants' contract or lease. (4) The designated party shall provide each notice to the occupants by: (i) Posting and maintaining it in centrally located common areas and distributing it to any dwelling unit if necessary because the head of household is a person with a known disability; or (ii) Distributing it to each occupied dwelling unit affected by the evaluation, presumption, or hazard reduction activity or serviced by common areas in which an evaluation, presumption or hazard reduction has taken place.
Sec. 35.135 Use of paint containing lead.
(a) New use prohibition. The use of paint containing more than 0.06 percent dry weight of lead on any interior or exterior surface in federally owned housing or housing receiving Federal assistance is prohibited. As appropriate, each Federal agency shall include the prohibition in contracts, grants, cooperative agreements, insurance agreements, guaranty agreements, trust agreements, or other similar documents. (b) Pre-1978 prohibition. In the case of a jurisdiction which banned the sale or residential use of lead-containing paint before 1978, HUD may designate an earlier date for certain provisions of subparts D and F through M of this part.
Sec. 35.140 Prohibited methods of paint removal.
The following methods shall not be used to remove paint that is, or may be, lead-based paint: (a) Open flame burning or torching. (b) Machine sanding or grinding without a high-efficiency particulate air (HEPA) local exhaust control. (c) Abrasive blasting or sandblasting without HEPA local exhaust control. (d) Heat guns operating above 1100 degrees Fahrenheit or charring the paint.
Sec. 35.130 Lead hazard information pamphlet.
If provision of a lead hazard information pamphlet is required in subparts D and F through M of this part, the designated party shall provide to each occupied dwelling unit to which subparts D and F through M of this part apply, the lead hazard information pamphlet {[[Page 329]]}
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(e) Dry sanding or dry scraping, except dry scraping in conjunction with heat guns or within 1.0 ft. (0.30 m.) of electrical outlets, or when treating defective paint spots totaling no more than 2 sq. ft. (0.2 sq. m.) in any one interior room or space, or totaling no more than 20 sq. ft. (2.0 sq. m.) on exterior surfaces. (f) Paint stripping in a poorly ventilated space using a volatile stripper that is a hazardous substance in accordance with regulations of the Consumer Product Safety Commission at 16 CFR 1500.3, and/or a hazardous chemical in accordance with the Occupational Safety and Health Administration regulations at 29 CFR 1910.1200 or 1926.59, as applicable to the work.
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Sec. 35.145 Compliance with Federal laws and authorities.
All lead-based paint activities, including waste disposal, performed under this part shall be performed in accordance with applicable Federal laws and authorities. For example, such activities are subject to the applicable environmental review requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Toxic Substances Control Act, Title IV (15 U.S.C. 2860 et seq.), and other environmental laws and authorities (see, e.g., laws and authorities listed in SEC. 50.4 of this title).
duplicative or otherwise cause inefficiencies, HUD may modify or waive some or all of the requirements of the subparts in a manner that will promote efficiency while ensuring a comparable level of protection. (b) Participant responsibility. Nothing in this part is intended to relieve any participant in a program covered by this subpart of any responsibility for compliance with State, tribal or local laws, ordinances, codes or regulations governing evaluation and hazard reduction. If a State, tribal or local law, ordinance, code or regulation defines {[[Page 330]]} lead-based paint differently than the Federal definition, the more protective definition (i.e., the lower level) shall be followed in that State, tribal or local jurisdiction.
Sec. 35.155 Minimum requirements.
(a) Nothing in subparts B, C, D, F through M, and R of this part is intended to preclude a designated party or occupant from conducting additional evaluation or hazard reduction measures beyond the minimum requirements established for each program in this regulation. For example, if the applicable subpart requires visual assessment, the designated party may choose to perform a risk assessment in accordance with SEC. 35.1320. Similarly, if the applicable subpart requires interim controls, a designated party or occupant may choose to implement abatement in accordance with SEC. 35.1325. (b) To the extent that assistance from any of the programs covered by subparts B, C, D, and F through M of this part is used in conjunction with other HUD program assistance, the most protective requirements prevail.
Sec. 35.150 Compliance with other State, tribal, and local laws.
(a) HUD responsibility. If HUD determines that a State, tribal or local law, ordinance, code or regulation provides for evaluation or hazard reduction in a manner that provides a comparable level of protection from the hazards of lead-based paint poisoning to that provided by the requirements of subparts B, C, D, F through M and R of this part and that adherence to the requirements of subparts B, C, D, F through M, and R of this part, would be
Sec. 35.160 Waivers.
In accordance with SEC. 5.110 of this title, on a case-by-case basis and upon determination of good cause, HUD may, subject to statutory limitations, waive any
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(3) A risk assessment conducted on or after the date specified in 40 CFR 745.239(b) must have been conducted by a certified risk assessor. (4) Paragraph (b) of this section does not apply in a case where a risk assessment is required in response to the identification of a child with an environmental intervention blood lead level. In such a case, the requirements in the applicable subpart for responding to a child with an environmental intervention blood lead level shall apply. (c) Interim controls. If a residential property is under a program of interim controls and ongoing lead-based paint maintenance and reevaluation activities established pursuant to a risk assessment conducted in accordance with paragraph (b) of this section, the interim controls that have been conducted meet the requirements of this part if clearance was achieved after such controls were implemented. In such a case, the program of interim controls and ongoing activities shall be continued in accordance with the requirements of this part. {[[Page 331]]} (d) Abatement. (1) An abatement conducted before the date specified in 40 CFR 745.239(b) meets the requirements of this part if: (i) At the time of the abatement the abatement supervisor was approved by a State or Indian tribe to perform lead-based paint abatement. It is not necessary that the State or tribal approval program had EPA authorization at the time of the abatement. (ii) Notwithstanding paragraph (d)(1)(i) of this section, it was conducted and accepted by a housing agency in fulfillment of the leadbased paint abatement requirement of the public housing program or by an Indian housing authority (as formerly defined under the U.S. Housing Act of 1937) in fulfillment of the lead-based paint requirement of the Indian housing program formerly funded under the U.S. Housing Act of 1937. (2) An abatement conducted on or after the date specified in 40 CFR 745.239(b) must have been conducted under the
provision of subparts B, C, D, F through M, and R of this part.
Sec. 35.165 Prior evaluation or hazard reduction.
If an evaluation or hazard reduction was conducted at a residential property or dwelling unit before the property or dwelling unit became subject to the requirements of subparts B, C, D, F through M, and R of this part, such an evaluation, hazard reduction or abatement meets the requirements of subparts B, C, D, F through M, and R of this part and need not be repeated under the following conditions: (a) Lead-based paint inspection. (1) A lead-based paint inspection conducted before the date specified in 40 CFR 745.239(b) meets the requirements of this part if: (i) At the time of the inspection the lead-based paint inspector was approved by a State or Indian tribe to perform lead-based paint inspections. It is not necessary that the State or tribal approval program had EPA authorization at the time of the inspection. (ii) Notwithstanding paragraph (a)(1)(i) of this section, the inspection was conducted and accepted as valid by a housing agency in fulfillment of the lead-based paint inspection requirement of the public and Indian housing program. (2) A lead-based paint inspection conducted on or after the effective date specified in 40 CFR 745.239(b) must have been conducted by a certified lead-based paint inspector. (b) Risk assessment. (1) A risk assessment must be no more than 12 months old to be considered current. (2) A risk assessment conducted before the effective date of 40 CFR 745.239(b) meets the requirements of this part if at the time of the risk assessment the risk assessor was approved by a State or Indian tribe to perform risk assessments. It is not necessary that the State or tribal approval program had EPA authorization at the time of the risk assessment.
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supervision of a certified lead-based paint abatement supervisor. [64 FR 50208, Sept. 15, 1999; 65 FR 3387, Jan. 21, 2000]
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Subpart C_Disposition of Residential Property Owned by a Federal Agency Other Than HUD
Source: 64 FR 50208, Sept. 15, 1999, unless otherwise noted.
Sec. 35.170 Noncompliance with the requirements of subparts B through R of this part.
(a) Monitoring and enforcement. A designated party who fails to comply with any requirement of subparts B, C, D, F through M, and R of this part shall be subject to the sanctions available under the relevant Federal housing assistance or ownership program and may be subject to other penalties authorized by law. (b) A property owner who informs a potential purchaser or occupant of leadbased paint or possible lead-based paint hazards in a residential property or dwelling unit, in accordance with subpart A of this part, is not relieved of the requirements to evaluate and reduce lead-based paint hazards in accordance with subparts B through R of this part as applicable.
Sec. 35.200 Purpose and applicability.
The purpose of this subpart C is to establish procedures to eliminate as far as practicable lead-based paint hazards prior to the sale of a residential property that is owned by a Federal agency other than HUD. The requirements of this subpart apply to any residential property offered for sale on or after September 15, 2000.
Sec. 35.205 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.175 Records.
The designated party, as specified in subparts C, D, and F through M of this part, shall keep a copy of each notice, evaluation, and clearance or abatement report required by subparts C, D, and F through M of this part for at least three years. Those records applicable to a portion of a residential property for which ongoing lead-based paint maintenance and/or reevaluation activities are required shall be kept and made available for the Department's review, until at least three years after such activities are no longer required.
Sec. 35.210 Disposition of residential property constructed before 1960.
(a) Evaluation. The Federal agency shall conduct a risk assessment and a leadbased paint inspection in accordance with 40 CFR 745.227 before the closing of the sale. (b) Abatement of lead-based paint hazards. The risk assessment used for the identification of hazards to be abated shall have been performed no more than 12 months before the beginning of the abatement. The Federal agency shall abate all identified lead-based paint hazards in accordance with 40 CFR 745.227. Abatement is completed {[[Page 332]]} when clearance is achieved in accordance with 40 CFR 745.227. Where abatement of lead-based paint hazards is not completed before the closing of the sale, the Federal agency shall be responsible for assuring that abatement is carried out by the purchaser before occupancy of the property
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(b) Lead hazard information pamphlet. The owner shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
as target housing and in accordance with 40 CFR 745.227.
Sec. 35.215 Disposition of residential property constructed after 1959 and before 1978.
The Federal agency shall conduct a risk assessment and a lead-based paint inspection in accordance with 40 CFR 745.227. Evaluation shall be completed before closing of the sale according to a schedule determined by the Federal agency. The results of the risk assessment and lead-based paint inspection shall be made available to prospective purchasers as required in subpart A of this part.
Sec. 35.315 Risk assessment.
Each owner shall complete a risk assessment in accordance with 40 CFR 745.227(d). Each risk assessment shall be completed in accordance with the schedule established by the Federal agency.
Sec. 35.320 Hazard reduction.
Each owner shall conduct interim controls consistent with the findings of the risk assessment report. Hazard reduction shall be conducted in accordance with subpart R of this part.
Subpart D_Project-Based Assistance Provided by a Federal Agency Other Than HUD
Source: 64 FR 50209, Sept. 15, 1999, unless otherwise noted.
Sec. 35.325 Child with an environmental intervention blood lead level.
If a child less than 6 years of age living in a federally assisted dwelling unit has an environmental intervention blood lead level, the owner shall immediately conduct a risk assessment in accordance with 40 CFR 745.227(d). Interim controls of identified lead-based paint hazards shall be conducted in accordance with SEC. 35.1330. Interim controls are complete when clearance is achieved in accordance with SEC. 35.1340. The Federal agency shall establish a timetable for completing risk assessments and hazard reduction when an environmental intervention blood lead level child is identified.
Sec. 35.300 Purpose and applicability.
The purpose of this subpart D is to establish procedures to eliminate as far as practicable lead-based paint hazards in a residential property that receives more than $5,000 annually per project in project-based assistance on or after September 15, 2000, under a program administered by a Federal agency other than HUD.
Sec. 35.305 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Subpart E [Reserved] Subpart F_HUD-Owned Single Family Property
Source: 64 FR 50209, Sept. 15, 1999, unless otherwise noted.
Sec. 35.310 Notices and pamphlet.
(a) Notice. A notice of evaluation or hazard reduction shall be provided to the occupants in accordance with SEC. 35.125.
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Sec. 35.500 Purpose and applicability.
The purpose of this subpart F is to establish procedures to eliminate as far as practicable lead-based paint hazards in HUD-owned single family properties that have been built before 1978 and are sold with mortgages insured under a program administered by HUD. The requirements of this subpart apply to any such residential properties offered for sale on or after September 15, 2000. {[[Page 333]]}
Sec. 35.600 Purpose and applicability.
The purpose of this subpart G is to establish procedures to eliminate as far as practicable lead-based paint hazards in a multifamily residential property for which HUD is the owner of the mortgage or the owner receives mortgage insurance, under a program administered by HUD.
Sec. 35.605 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.505 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.610 Exemption.
An application for insurance in connection with a refinancing transaction where an appraisal is not required under the applicable procedures established by HUD is excluded from the coverage of this subpart.
Sec. 35.510 Required procedures.
(a) The following activities shall be conducted for all properties to which this subpart is applicable: (1) A visual assessment of all painted surfaces in order to identify deteriorated paint; (2) Paint stabilization of all deteriorated paint in accordance with SEC. 35.1330(a) and (b); and (3) Clearance in accordance with SEC. 35.1340. (b) Occupancy shall not be permitted until all required paint stabilization is complete and clearance is achieved. (c) If paint stabilization and clearance are not completed before the closing of the sale, the Department shall assure that paint stabilization and clearance are carried out pursuant to subpart R of this part by the purchaser before occupancy.
Sec. 35.615 Notices and pamphlet.
(a) Notice. If evaluation or hazard reduction is undertaken, the sponsor shall provide a notice to occupants in accordance with SEC. 35.125. (b) Lead hazard information pamphlet. The sponsor shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
Sec. 35.620 Multifamily insured property constructed before 1960.
Except as provided in SEC. 35.630, the following requirements apply to multifamily insured property constructed before 1960: (a) Risk assessment. Before the issuance of a firm commitment the sponsor shall conduct a risk assessment in accordance with SEC. 35.1320(b). (b) Interim controls. (1) The sponsor shall conduct interim controls in accordance with SEC. 35.1330 to treat the lead-based
Subpart G_Multifamily Mortgage Insurance
Source: 64 FR 50209, Sept. 15, 1999, unless otherwise noted.
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with SEC. 35.1325. Whenever practicable, abatement shall be achieved through the methods of paint removal or component replacement. If paint removal or component replacement are not practicable, that is if such methods would damage substrate material considered architecturally significant, permanent encapsulation or enclosure may be used as methods of abatement. Abatement is considered complete when clearance is achieved in accordance with SEC. 35.1340. If encapsulation or enclosure is used, the sponsor shall incorporate ongoing leadbased paint maintenance into regular building operations maintenance activities in accordance with SEC. 35.1355. (c) Historic properties. Section 35.115(a)(13) applies to this section.
paint hazards identified in the risk assessment. Interim controls are considered completed when clearance is achieved in accordance with SEC. 35.1340. (2) The sponsor shall complete interim controls before the issuance of the firm commitment or interim controls may be made a condition of the Federal Housing Administration (FHA) firm commitment, with sufficient repair or rehabilitation funds escrowed at initial endorsement of the FHA insured loan. (c) Ongoing lead-based paint maintenance activities. Before the issuance of the firm commitment, the sponsor shall agree to incorporate ongoing lead-based paint maintenance into regular building operations and maintenance activities in accordance with SEC. 35.1355(a).
Sec. 35.625 Multifamily insured property constructed after 1959 and before 1978.
Except as provided in SEC. 35.630, before the issuance of the firm commitment, the sponsor shall agree to incorporate ongoing lead-based paint maintenance practices into regular building operations, in accordance with SEC. 35.1355(a). {[[Page 334]]}
Subpart H_Project-Based Rental Assistance
Source: 64 FR 50210, Sept. 15, 1999, unless otherwise noted.
Sec. 35.700 Purpose and applicability.
(a) This subpart H establishes procedures to eliminate as far as practicable lead-based paint hazards in residential properties receiving project-based assistance under a HUD program. The requirements of this subpart apply only to the assisted dwelling units in a covered property and any common areas servicing those dwelling units. This subpart does not apply to housing receiving rehabilitation assistance or to public housing, which are covered by subparts J and M of this part, respectively. (b) For the purposes of competitively awarded grants under the Housing Opportunities for Persons with AIDS Program (HOPWA), the Supportive Housing Program (42 U.S.C. 11381-11389) and the Shelter Plus Care Program projectbased rental assistance and sponsor-based rental assistance components (42 U.S.C. 11402-11407), the requirements of this subpart shall apply to grants awarded
Sec. 35.630 Conversions and major rehabilitations.
The procedures and requirements of this section apply when a nonresidential property constructed before 1978 is to be converted to residential use, or a residential property constructed before 1978 is to undergo rehabilitation that is estimated to cost more than 50 percent of the estimated replacement cost after rehabilitation. (a) Lead-based paint inspection. Before issuance of a firm FHA commitment, the sponsor shall conduct a lead-based paint inspection in accordance with SEC. 35.1320(a). (b) Abatement. Prior to occupancy, the sponsor shall conduct abatement of all leadbased paint on the property in accordance
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pursuant to Notices of Funding Availability published on or after October 1, 1999. For the purposes of formula grants awarded under the Housing Opportunities for Persons with AIDS Program (HOPWA) (42 U.S.C. 12901 et seq.), the requirements of this subpart shall apply to activities for which program funds are first obligated on or after September 15, 2000.
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Sec. 35.705 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.710 Notices and pamphlet.
(a) Notice. If evaluation or hazard reduction is undertaken, each owner shall provide a notice to occupants in accordance with SEC. 35.125. (b) Lead hazard information pamphlet. The owner shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
Sec. 35.715 Multifamily properties receiving more than $5,000 per unit.
The requirements of this section shall apply to a multifamily residential property that is receiving an average of more than $5,000 per assisted dwelling unit annually in project-based assistance. (a) Risk assessment. Each owner shall complete a risk assessment in accordance with SEC. 35.1320(b). A risk assessment is considered complete when the owner receives the risk assessment report. Until the owner conducts a risk assessment as required by this section, the requirements of paragraph (d) of this section shall apply. After the risk assessment has been conducted the requirements of paragraphs (b) and (c) of {[[Page 335]]} this section shall apply. Each risk assessment shall be completed no later than
the following schedule or a schedule otherwise determined by HUD: (1) Risk assessments shall be completed on or before September 17, 2001, in a multifamily residential property constructed before 1960. (2) Risk assessments shall be completed on or before September 15, 2003, in a multifamily residential property constructed after 1959 and before 1978. (b) Interim controls. Each owner shall conduct interim controls in accordance with SEC. 35.1330 to treat the lead-based paint hazards identified in the risk assessment. Interim controls are considered completed when clearance is achieved in accordance with SEC. 35.1340. Interim controls shall be completed no later than the following schedule: (1) In units occupied by families with children of less than 6 years of age and in common areas servicing those units, interim controls shall be completed no later than 90 days after the completion of the risk assessment. In units in which a child of less than 6 years of age moves in after the completion of the risk assessment, interim controls shall be completed no later than 90 days after the move-in. (2) In all other dwelling units, common areas, and the remaining portions of the residential property, interim controls shall be completed no later than 12 months after completion of the risk assessment for those units. (c) Ongoing lead-based paint maintenance and reevaluation activities. Effective immediately after completion of the risk assessment required in SEC. 35.715(a), the owner shall incorporate ongoing lead-based paint maintenance and reevaluation into the regular building operations in accordance with SEC. 35.1355, unless all leadbased paint has been removed. If the reevaluation identifies new leadbased paint hazards, the owner shall conduct interim controls in accordance with SEC. 35.1330. (d) Transitional requirements--(1) Effective date. The requirements of this
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35.1330(b) before occupancy of a vacant dwelling unit or, where a unit is occupied, within 30 days of notification of the results of the visual assessment. Paint stabilization is considered complete when clearance is achieved in accordance with SEC. 35.1340. (3) Notice. The owner shall provide a notice to occupants in accordance with SEC. Sec. 35.125(b) (1) and (c) describing the results of the clearance examination. {[[Page 336]]} (b) Ongoing lead-based paint maintenance activities. The owner shall incorporate ongoing lead-based paint maintenance activities into regular building operations in accordance with SEC. 35.1355(a), unless all lead-based paint has been removed. (c) Child with an environmental intervention blood lead level. If a child of less than 6 years of age living in a dwelling unit covered by this section has an environmental intervention blood lead level, the owner shall comply with the requirements of SEC. 35.730.
paragraph shall apply effective September 15, 2000, and continuing until the applicable date specified in SEC. 35.715(a) (1) or (2) or until the owner conducts a risk assessment, whichever is first. (2) Definitions and other general requirements that apply to this paragraph are found in subpart B of this part. (3) Ongoing lead-based paint maintenance. The owner shall incorporate ongoing lead-based paint maintenance activities into regular building operations, in accordance with SEC. 35.1355(a), except that clearance is not required. (4) Child with an environmental intervention blood lead level. If a child of less than 6 years of age living in a dwelling unit covered by this paragraph has an environmental intervention blood lead level, the owner shall comply with the requirements of SEC. 35.730.
Sec. 35.720 Multifamily properties receiving up to $5,000 per unit, and single family properties.
Effective September 15, 2000, the requirements of this section shall apply to a multifamily residential property that is receiving an average of up to and including $5,000 per assisted dwelling unit annually in project-based assistance and to a single family residential property that is receiving project-based assistance through the Section 8 Moderate Rehabilitation program, the Project-Based Certificate program, or any other HUD program providing project-based assistance. (a) Activities at initial and periodic inspection.--(1) Visual assessment. During the initial and periodic inspections, an inspector trained in visual assessment for deteriorated paint surfaces in accordance with procedures established by HUD shall conduct a visual assessment of all painted surfaces in order to identify any deteriorated paint. (2) Paint stabilization. The owner shall stabilize each deteriorated paint surface in accordance with SEC. 35.1330(a) and SEC.
Sec. 35.725 Section 8 Rent adjustments.
HUD may, subject to the availability of appropriations for Section 8 contract amendments, on a project by project basis for projects receiving Section 8 projectbased assistance, provide adjustments to the maximum monthly rents to cover the costs of evaluation for and reduction of lead-based paint hazards, as defined in section 1004 of the Residential Lead-Based Paint Hazard Reduction Act of 1992.
Sec. 35.730 Child with an environmental intervention blood lead level.
(a) Risk assessment. Within 15 days after being notified by a public health department or other medical health care provider that a child of less than 6 years of age living in a dwelling unit to which this subpart applies has been identified as having an environmental intervention blood lead
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level, the owner shall complete a risk assessment of the dwelling unit in which the child lived at the time the blood was last sampled and of common areas servicing the dwelling unit. The risk assessment shall be conducted in accordance with 35.1320(b) and is considered complete when the owner receives the risk assessment report. The requirements of this paragraph apply regardless of whether the child is or is not still living in the unit when the owner receives the notification of the environmental intervention blood lead level. The requirements of this paragraph (a) shall not apply if the owner conducted a risk assessment of the unit and common areas servicing the unit between the date the child's blood was last sampled and the date when the owner received the notification of the environmental intervention blood lead level. If a public health department has already conducted an evaluation of the dwelling unit, the requirements of this paragraph shall not apply. (b) Verification. After receiving information from a person who is not a medical health care provider that a child of less than 6 years of age living in a dwelling unit covered by this subpart may have an environmental intervention blood lead level, the owner shall immediately verify the information with the public health department or other medical health care provider. If that department or provider verifies that the child has an environmental intervention blood lead level, such verification shall constitute notification, and the owner shall take the action required in paragraphs (a) and (c) of this section. (c) Hazard reduction. Within 30 days after receiving the report of the risk assessment conducted pursuant to paragraph (a) of this section or the evaluation from the public health department, the owner shall complete the reduction of identified leadbased paint hazards in accordance with SEC. 35.1325 or SEC. 35.1330. Hazard reduction is considered complete when clearance is achieved in accordance with SEC. 35.1340 and the clearance report states that all leadbased paint hazards identified in the risk
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assessment have been treated with interim controls or abatement or the public health department certifies that the lead-based paint hazard reduction is complete. The requirements of this paragraph do not apply if the owner, between the date the child's blood was last sampled and the date the owner received the notification of the environmental intervention blood lead level, already conducted a risk assessment of the unit and common areas servicing the unit and completed reduction of identified leadbased paint hazards. (d) Notice. If evaluation or hazard reduction is undertaken, each owner shall provide a notice to occupants in accordance with SEC. 35.125. (e) Reporting requirement. The owner shall report the name and address of a child identified as having an environmental intervention blood lead level to the public health department within 5 working days of being so notified by {[[Page 337]]} any other medical health care professional.
Subpart I_HUD-Owned and Mortgagee-in-Possession Multifamily Property
Source: 64 FR 50211, Sept. 15, 1999, unless otherwise noted.
Sec. 35.800 Purpose and applicability.
The purpose of this subpart I is to establish procedures to eliminate as far as practicable lead-based paint hazards in a HUD-owned multifamily residential property or a multifamily residential property for which HUD is identified as mortgagee-in-possession. The requirements of this subpart apply to any such property that is offered for sale or held or managed on or after September 15, 2000.
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controls shall be completed no later than 90 days after the completion of the risk assessment. In units in which a child of less than 6 years of age moves in after the completion of the risk assessment, interim controls shall be completed no later than 90 days after the move-in. (b) In all other dwelling units, common areas, and the remaining portions of the residential property, interim controls shall be completed no later than 12 months after completion of the risk assessment for those units. (c) If conveyance of the title by HUD at a sale of a HUD-owned property or a foreclosure sale caused by HUD when HUD is mortgagee-inpossession occurs before the schedule in paragraphs (a) and (b) of this section, HUD shall complete interim controls before conveyance or foreclosure, or HUD shall be responsible for assuring that interim controls are carried out by the purchaser. If interim controls are made a condition of sale, such controls shall be completed according to the following schedule: (1) In units occupied by families with children of less than 6 years of age and in common areas servicing those units, interim controls shall be completed no later than 90 days after the date of the closing of the sale. In units in which a child of less than 6 years of age moves in after the closing of the sale, interim controls shall be completed no later than 90 days after the move-in. (2) In all other dwelling units, in common areas servicing those units, and in the remaining portions of the residential property, interim controls shall be completed no later than 180 days after the closing of the sale. {[[Page 338]]}
Sec. 35.805 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.810 Notices and pamphlet.
(a) Notices. When evaluation or hazard reduction is undertaken, the Department shall provide a notice to occupants in accordance with SEC. 35.125. (b) Lead hazard information pamphlet. HUD shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
Sec. 35.815 Evaluation.
HUD shall conduct a risk assessment and a lead-based paint inspection in accordance with SEC. 35.1320(a) and (b). For properties to which this subpart applies on September 15, 2000, the lead-based paint inspection and risk assessment shall be conducted no later than December 15, 2000, or before publicly advertising the property for sale, whichever is sooner. For properties to which this subpart becomes applicable after September 15, 2000, the lead-based paint inspection and risk assessment shall be conducted no later than 90 days after this subpart becomes applicable or before publicly advertising the property for sale, whichever is sooner.
Sec. 35.820 Interim controls.
HUD shall conduct interim controls in accordance with SEC. 35.1330 to treat the lead-based paint hazards identified in the evaluation conducted in accordance with SEC. 35.815. Interim controls are considered completed when clearance is achieved in accordance with SEC. 35.1340. Interim controls of all lead-based paint hazards shall be completed no later than the following schedule: (a) In units occupied by families with children of less than 6 years of age and in common areas servicing those units, interim
Sec. 35.825 Ongoing leadbased paint maintenance and reevaluation.
HUD shall incorporate ongoing leadbased paint maintenance and reevaluation, in accordance with SEC. 35.1355, into regular building operations if HUD retains
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ownership of the residential property for more than 12 months.
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Sec. 35.830 Child with an environmental intervention blood lead level.
(a) Risk assessment. Within 15 days after being notified by a public health department or other medical health care provider that a child of less than 6 years of age living in a multifamily dwelling unit owned by HUD (or where HUD is mortgagee-in-possession) has been identified as having an environmental intervention blood lead level, HUD shall complete a risk assessment of the dwelling unit in which the child lived at the time the blood was last sampled and of common areas servicing the dwelling unit. The risk assessment shall be conducted in accordance with SEC. 35.1320(b) and is considered complete when HUD receives the risk assessment report. The requirements of this paragraph apply regardless of whether the child is or is not still living in the unit when HUD receives the notification of the environmental intervention blood lead level. The requirements of this paragraph do not apply if HUD conducted a risk assessment of the unit and common areas servicing the unit between the date the child's blood was last sampled and the date when HUD received the notification of the environmental intervention blood lead level. If a public health department has already conducted an evaluation of the dwelling unit, the requirements of this paragraph shall not apply. (b) Verification. After receiving information from a person who is not a medical health care provider that a child of less than 6 years of age living in a multifamily dwelling unit owned by HUD (or where HUD is mortgagee-in-possession) may have an environmental intervention blood lead level, HUD shall immediately verify the information with the public health department or other medical health care provider. If that department or provider verifies that the child has an environmental
intervention blood lead level, such verification shall constitute notification, and HUD shall take the action required in paragraphs (a) and (c) of this section. (c) Hazard reduction. Within 30 days after receiving the report of the risk assessment conducted pursuant to paragraph (a) of this section or the evaluation from the public health department, HUD shall complete the reduction of lead-based paint hazards identified in the risk assessment in accordance with SEC. 35.1325 or SEC. 35.1330. Hazard reduction is considered complete when clearance is achieved in accordance with SEC. 35.1340 and the clearance report states that all lead-based paint hazards identified in the risk assessment have been treated with interim controls or abatement or the public health department certifies that the lead-based paint hazard reduction is complete. The requirements of this paragraph do not apply if HUD, between the date the child's blood was last sampled and the date HUD received the notification of the environmental intervention blood lead level, conducted a risk assessment of the unit and common areas servicing the unit and completed reduction of identified lead-based paint hazards. (d) Reporting requirement. HUD shall report the name and address of a child identified as having an environmental intervention blood lead level to the public health department within 5 working days of being so notified by any other health professional. (e) Closing. If the closing of a sale is scheduled during the period when HUD is responding to a case of a child with an environmental intervention blood lead level, HUD may arrange for the completion of the procedures required by SEC. 35.830(a)-(d) by the purchaser within a reasonable period of time. (f) Extensions. The Assistant Secretary for Housing-Federal Housing Commissioner or designee may consider and approve a request for an extension of deadlines established by this section for a lead-based paint inspection, risk assessment, hazard
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for Persons with AIDS Program (HOPWA) (42 U.S.C. 12901 et. seq.), the requirements of this subpart shall apply to activities for which program funds are first obligated on or after September 15, 2000. (4) For the purposes of competitively awarded grants under the HOPWA Program and the Supportive Housing Program (42 U.S.C. 11481-11389), the requirements of this subpart shall apply to grants awarded under Notices of Funding Availability published on or after September 15, 2000. (5) For the purposes of the Indian CDBG program (SEC. 1003.607 of this title), the requirements of this subpart shall not apply to funds whose notice of funding availability is announced or funding letter is sent before September 15, 2000. Such project grantees shall be subject to the regulations in effect at the time of announcement or funding letter. (b) The grantee or participating jurisdiction may assign to a subrecipient or other entity the responsibilities set forth in this subpart.
reduction, and reporting. Such a request may be considered, however, only during the first six months during which HUD is owner or mortgagee-in-possession of a multifamily property. {[[Page 339]]}
Subpart J_Rehabilitation
Source: 64 FR 50212, Sept. 15, 1999, unless otherwise noted.
Sec. 35.900 Purpose and applicability.
(a) Purpose and applicability. (1) The purpose of this subpart J is to establish procedures to eliminate as far as practicable lead-based paint hazards in a residential property that receives Federal rehabilitation assistance under a program administered by HUD. Rehabilitation assistance does not include project-based rental assistance, rehabilitation mortgage insurance or assistance to public housing. (2) The requirements of this subpart shall not apply to HOME funds which are committed to a specific project in accordance with SEC. 92.2 of this title before September 15, 2000. Such projects shall be subject to the requirements of SEC. 92.355 of this title that were in effect at the time of project commitment or the requirements of this subpart. (3) For the purposes of the Indian Housing Block Grant program and the CDBG Entitlement program, the requirements of this subpart shall apply to all residential rehabilitation activities (except those otherwise exempted) for which funds are first obligated on or after September 15, 2000. For the purposes of the State, HUD-Administered Small Cities, and Insular Areas CDBG programs, the requirements of this subpart shall apply to all covered activities (except those otherwise exempted) for which grant funding is awarded to the unit of local government by the State or HUD, as applicable, on or after September 15, 2000. For the purposes of the Emergency Shelter Grant Program (42 U.S.C. 11371-11378) and the formula grants awarded under the Housing Opportunities
Sec. 35.905 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.910 Notices and pamphlet.
(a) Notices. In cases where evaluation or hazard reduction or both are undertaken as part of federally funded rehabilitation, the grantee, participating jurisdiction, or CILP recipient, shall provide a notice to occupants in accordance with SEC. 35.125. (b) Lead hazard information pamphlet. The grantee, participating jurisdiction, or CILP recipient, shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
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Sec. 35.915 Calculating rehabilitation costs, except for the CILP Program.
(a) Applicability. This section applies to recipients of Federal rehabilitation assistance, except for CILP recipients, for which SEC. 35.920 applies. (b) Rehabilitation assistance. (1) Leadbased paint requirements for rehabilitation fall into three categories which depend on the amount of rehabilitation assistance provided. The three categories are: (i) Assistance of up to and including $5,000 per unit; (ii) Assistance of more than $5,000 per unit up to and including $25,000 per unit; and (iii) Assistance of more than $25,000 per unit. (2) For purposes of implementing SEC. Sec. 35.930-35.935, the amount of rehabilitation assistance is the average per {[[Page 340]]} unit amount of Federal funds for the hard costs of rehabilitation, excluding leadbased paint hazard evaluation and hazard reduction activities. Costs of site preparation, occupant protection, relocation, interim controls, abatement, clearance and waste handling attributable to lead-based paint hazard reduction are not to be included in the hard costs of rehabilitation. (c) Calculating rehabilitation assistance. For a residential property that includes both federally assisted and nonassisted units, the rehabilitation costs of non-assisted units are not included in the calculation. (1) The average cost of rehabilitation for the assisted units is calculated as follows: Per Unit Rehabilitation $ = (a/c) + (b/d) Where: a= Federal Rehabilitation Assistance for all assisted units b= Federal Rehabilitation Assistance for common areas and exterior painted surfaces c= Number of federally assisted units d= Total number of units
(2) Eight out of 10 dwelling units in a residential property receive Federal rehabilitation assistance. The total amount of Federal rehabilitation assistance for the dwelling units is $90,000, and the total amount of Federal rehabilitation assistance for the common areas and exterior surfaces is $10,000. Based on the formula above, the average per unit amount of Federal rehabilitation assistance is $12,250. This is illustrated as follows: $12,250 = ($90,000/8) + ($10,000/10).
Sec. 35.920 Calculating rehabilitation costs for the Flexible SubsidyCILP program. All dwelling units and common areas in a residential property are considered to be assisted under the CILP program. The cost of rehabilitation is calculated as follows: Per Unit Rehab $ = Federal Rehab Assistance / Total Number of Units.
Sec. 35.925 Examples of determining applicable requirements.
The following examples illustrate how to determine whether the requirements of SEC. Sec. 35.930(b), (c), or (d) apply to a dwelling unit receiving Federal rehabilitation assistance (dollar amounts are on a per unit basis): (a) If the total amount of Federal assistance for a dwelling is $2,000, and the hard costs of rehabilitation are $10,000, the lead-based paint requirements would be those described in SEC. 35.930(b), because Federal rehabilitation assistance is up to and including $5,000. (b) If the total amount of Federal assistance for a dwelling unit is $6,000, and the hard costs of rehabilitation are $2,000, the lead-based paint requirements would be those described in SEC. 35.930(b). Although the total amount of Federal dollars is more than $5,000, only the $2,000 of that total can be applied to rehabilitation. Therefore, the
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(1) Conduct paint testing or presume the presence of lead-based paint, in accordance with paragraph (a) of this section. (2) Perform a risk assessment in the dwelling units receiving Federal assistance, in common areas servicing those units, and exterior painted surfaces, in accordance with SEC. 35.1320(b), before rehabilitation begins. (3) Perform interim controls in accordance with SEC. 35.1330 of all leadbased paint hazards identified pursuant to paragraphs (c)(1) and (c)(2) of this section and any lead-based paint hazards created as a result of the rehabilitation work. (d) Residential property receiving an average of more than $25,000 per unit in Federal rehabilitation assistance. Each grantee, participating jurisdiction, or CILP recipient shall: (1) Conduct paint testing or presume the presence of lead-based paint in accordance with paragraph (a) of this section. (2) Perform a risk assessment in the dwelling units receiving Federal assistance and in associated common areas and exterior painted surfaces in accordance with SEC. 35.1320(b) before rehabilitation begins. (3) Abate all lead-based paint hazards identified by the paint testing or risk assessment conducted pursuant to paragraphs (d)(1) and (d)(2) of this section, and any lead-based paint hazards created as a result of the rehabilitation work, in accordance with SEC. 35.1325, except that interim controls are acceptable on exterior surfaces that are not disturbed by rehabilitation. [64 FR 50214, Sept. 15, 1999; 65 FR 3387, Jan. 21, 2000]
Federal rehabilitation assistance is $2,000 which is not more than $5,000. (c) If the total amount of Federal assistance for a unit is $6,000, and the hard costs of rehabilitation are $6,000, the leadbased paint requirements are those described in SEC. 35.930(c), because the amount of Federal rehabilitation assistance is more than $5,000 but not more than $25,000.
Sec. 35.930 Evaluation and hazard reduction requirements.
(a) Paint testing. The grantee, participating jurisdiction, or CILP recipient shall either perform paint testing on the painted surfaces to be disturbed or replaced during rehabilitation activities, or presume that all these painted surfaces are coated with lead-based paint. (b) Residential property receiving an average of up to and including $5,000 per unit in Federal rehabilitation assistance. Each grantee, participating jurisdiction, or CILP recipient shall: (1) Conduct paint testing or presume the presence of lead-based paint, in accordance with paragraph (a) of this section. If paint testing indicates that the painted surfaces are not coated with leadbased paint, safe work practices and clearance are not required. (2) Implement safe work practices during rehabilitation work in accordance with SEC. 35.1350 and repair any paint that is disturbed. (3) After completion of any rehabilitation disturbing painted surfaces, perform a clearance examination of the {[[Page 341]]} worksite(s) in accordance with SEC. 35.1340. Clearance is not required if rehabilitation did not disturb painted surfaces of a total area more than that set forth in SEC. 35.1350(d). (c) Residential property receiving an average of more than $5,000 and up to and including $25,000 per unit in Federal rehabilitation assistance. Each grantee, participating jurisdiction, or CILP recipient shall:
Sec. 35.935 Ongoing leadbased paint maintenance activities.
In the case of a rental property receiving Federal rehabilitation assistance under the HOME program or the Flexible Subsidy-CILP program, the grantee,
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participating jurisdiction or CILP recipient shall require the property owner to incorporate ongoing lead-based paint maintenance activities into regular building operations, in accordance with SEC. 35.1355(a).
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examination of the affected dwelling units and common areas in accordance with SEC. 35.1340. Clearance shall be achieved before residents are allowed to occupy rooms or spaces in which paint stabilization has been performed.
Sec. 35.940 Special requirements for insular areas.
If a dwelling unit receiving Federal assistance under a program covered by this subpart is located in an insular area, the requirements of this section shall apply and the requirements of SEC. 35.930 shall not apply. All other sections of this subpart J shall apply. The insular area shall conduct the following activities for the dwelling unit, common areas servicing the dwelling unit, and the exterior surfaces of the building in which the dwelling unit is located: (a) Residential property receiving an average of up to and including $5,000 per unit in Federal rehabilitation assistance. (1) Implement safe work practices during rehabilitation work in accordance with SEC. 35.1350 and repair any paint that is disturbed by rehabilitation. (2) After completion of any rehabilitation disturbing painted surfaces, perform a clearance examination of the worksite(s) in accordance with SEC. 35.1340. Clearance shall be achieved before residents are allowed to occupy the worksite(s). Clearance is not required if rehabilitation did not disturb painted surfaces of a total area more than that set forth in SEC. 35.1350(b). (b) Residential property receiving an average of more than $5,000 per unit in Federal rehabilitation assistance. (1) Before beginning rehabilitation, perform a visual assessment of all painted surfaces in order to identify deteriorated paint. (2) Perform paint stabilization of each deteriorated paint surface and each painted surface being disturbed by rehabilitation, in accordance with SEC. Sec. 35.1330(a) and (b). {[[Page 342]]} (3) After completion of all paint stabilization, perform a clearance
Subpart K_Acquisition, Leasing, Support Services, or Operation
Source: 64 FR 50214, Sept. 15, 1999, unless otherwise noted.
Sec. 35.1000 Purpose and applicability.
(a) The purpose of this subpart K is to establish procedures to eliminate as far as practicable lead-based paint hazards in a residential property that receives Federal assistance under certain HUD programs for acquisition, leasing, support services, or operation. Acquisition, leasing, support services, and operation do not include mortgage insurance, sale of federally-owned housing, project-based or tenant-based rental assistance, rehabilitation assistance, or assistance to public housing. For requirements pertaining to those activities or types of assistance, see the applicable subpart of this part. (b) The grantee or participating jurisdiction may assign to a subrecipient or other entity the responsibilities set forth in this subpart. (c)(1) The requirements of this subpart shall not apply to HOME funds which are committed to a specific project in accordance with SEC. 92.2 of this title before September 15, 2000. Such projects shall be subject to the requirements of SEC. 92.355 of this title that were in effect at the time of project commitment, or the requirements of this subpart. (2) For purposes of the CDBG Entitlement program and the Indian Housing Block Grant program, the requirements of this subpart shall apply to activities (except those otherwise exempted) for which funds are first obligated on or after September 15,
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considered an evaluation for purposes of this part. (b) Lead hazard information pamphlet. The grantee or participating jurisdiction shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
2000. For the purposes of the State, HUDAdministered Small Cities, and Insular Areas CDBG programs, the requirements of this subpart shall apply to all covered activities (except those otherwise exempted) for which grant funding is awarded to the unit of local government by the State or HUD, as applicable, on or after September 15, 2000. For the purposes of the Emergency Shelter Grant Program (42 U.S.C. 11371-11378) and the formula grants awarded under the Housing Opportunities for Persons with AIDS Program (HOPWA) (42 U.S.C. 12901 et. seq.), the requirements of this subpart shall apply to activities for which program funds are first obligated on or after September 15, 2000. (3) For the purposes of competitively awarded grants under the HOPWA Program and the Supportive Housing Program (42 U.S.C. 11481-11389), the requirements of this subpart shall apply to grants awarded under Notices of Funding Availability published on or after September 15, 2000. (4) For the purposes of the Indian CDBG program (SEC. 1003.607 of this title), the requirements of this subpart shall not apply to funds whose notice of funding availability is announced or funding letter is sent before September 15, 2000. Such project grantees shall be subject to the regulations in effect at the time of announcement or funding letter. [64 FR 50213, Sept. 15, 1999; 65 FR 3387, Jan. 21, 2000]
Sec. 35.1015 Visual assessment, paint stabilization, and maintenance.
If a dwelling unit receives Federal assistance under a program covered by {[[Page 343]]} this subpart, each grantee or participating jurisdiction shall conduct the following activities for the dwelling unit, common areas servicing the dwelling unit, and the exterior surfaces of the building in which the dwelling unit is located: (a) A visual assessment of all painted surfaces in order to identify deteriorated paint; (b) Paint stabilization of each deteriorated paint surface, and clearance, in accordance with SEC. Sec. 35.1330(a) and (b), before occupancy of a vacant dwelling unit or, where a unit is occupied, immediately after receipt of Federal assistance; and (c) The grantee or participating jurisdiction shall incorporate ongoing leadbased paint maintenance activities into regular building operations, in accordance with SEC. 35.1355(a). (d) The grantee or participating jurisdiction shall provide a notice to occupants in accordance with SEC. Sec. 35.125(b)(1) and (c), describing the results of the clearance examination.
Sec. 35.1005 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.1010 Notices and pamphlet.
(a) Notice. In cases where evaluation or hazard reduction, including paint stabilization, is undertaken, each grantee or participating jurisdiction shall provide a notice to residents in accordance with SEC. 35.125. A visual assessment is not
Sec. 35.1020 Funding for evaluation and hazard reduction.
The grantee or participating jurisdiction shall determine whether the cost of evaluation and hazard reduction is to be borne by the owner/ developer, the grantee or a combination of the owner/developer and the grantee,
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based on program requirements and local program design.
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Subpart L_Public Housing Programs
Source: 64 FR 50215, Sept. 15, 1999, unless otherwise noted.
Sec. 35.1100 Purpose and applicability.
The purpose of this subpart L is to establish procedures to eliminate as far as practicable lead-based paint hazards in residential property assisted under the U.S. Housing Act of 1937 (42 U.S.C. 1437 et seq.) but not including housing assisted under section 8 of the 1937 Act.
Sec. 35.1105 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.1110 Notices and pamphlet.
(a) Notice. In cases where evaluation or hazard reduction is undertaken, each public housing agency (PHA) shall provide a notice to residents in accordance with SEC. 35.125. (b) Lead hazard information pamphlet. The PHA shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
Sec. 35.1115 Evaluation.
(a) A lead-based paint inspection shall be conducted in all public housing unless a lead-based paint inspection that meets the conditions of SEC. 35.165(a) has already been completed. If a lead-based paint inspection was conducted by a lead-based paint inspector who was not certified, the PHA shall review the quality of the inspection, in accordance with quality control procedures established by HUD, to determine whether the lead-based paint inspection has been properly performed and
the results are reliable. Lead-based paint inspections of all housing to which this subpart applies shall be completed no later than September 15, 2000. Revisions or augmentations of prior inspections found to be of insufficient quality shall be completed no later than September 17, 2001. (b) If a lead-based paint inspection has found the presence of leadbased paint, or if no lead-based paint inspection has been conducted, the PHA shall conduct a risk assessment according to the following schedule, unless a risk assessment that meets the conditions of SEC. 35.165(b) has already been completed: (1) Risk assessments shall be completed on or before March 15, 2001, in a multifamily residential property constructed before 1960. (2) Risk assessments shall be completed on or before March 15, 2002, in a multifamily residential property constructed after 1959 and before 1978. (c) A PHA that advertises a construction contract (including architecture/engineering contracts) for bid or award or plans to start force account work shall not execute such contract until a leadbased paint inspection and, if required, a risk assessment, has taken place and any necessary abatement is included in the modernization budget, {[[Page 344]]} except for contracts solely for emergency work in accordance with SEC. 35.115(a)(9). (d) The five-year funding request plan for CIAP and CGP shall be amended to include the schedule and funding for leadbased paint activities.
Sec. 35.1120 Hazard reduction.
(a) Each PHA shall, in accordance with SEC. 35.1325, abate all lead-based paint and lead-based paint hazards identified in the evaluations conducted pursuant to SEC. 35.1115. The PHA shall abate lead-based paint and lead-based paint hazards in accordance with SEC. 35.1325 during the course of physical improvements conducted under the modernization.
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based paint hazards shall be conducted in accordance with SEC. 35.1320. (b) If lead-based paint is found in a residential property to be acquired, the cost of evaluation and abatement shall be considered when making the cost comparison to justify new construction, as well as when meeting maximum total development cost limitations. (c) If lead-based paint is found, compliance with this subpart is required, and abatement of lead-based paint and leadbased paint hazards shall be completed in accordance with SEC. 35.1325 before occupancy.
(b) In all housing where abatement of all lead-based paint and leadbased paint hazards required in paragraph (a) of this section has not yet occurred, each PHA shall conduct interim controls, in accordance with SEC. 35.1330, of the lead-based paint hazards identified in the most recent risk assessment. (1) Interim controls of dwelling units in which any child who is less than 6 years of age resides and common areas servicing those dwelling units shall be completed within 90 days of the evaluation under SEC. 35.1330. If a unit becomes newly occupied by a family with a child of less than 6 years of age or such child moves into a unit, interim controls shall be completed within 90 days after the new occupancy or move-in if they have not already been completed. (2) Interim controls in dwelling units not occupied by families with one or more children of less than 6 years of age, common areas servicing those units, and the remaining portions of the residential property shall be completed no later than 12 months after completion of the evaluation conducted under SEC. 35.1115. (c) The PHA shall incorporate ongoing lead-based paint maintenance and reevaluation activities into regular building operations in accordance with SEC. 35.1355. In accordance with SEC. 35.115(a) (6) and (7), this requirement does not apply to a development or part thereof if it is to be demolished or disposed of in accordance with disposition requirements in part 970 of this title, provided the dwelling unit will remain unoccupied until demolition, or if it is not used and will not be used for human habitation.
Sec. 35.1130 Child with an environmental intervention blood lead level.
(a) Risk assessment. Within 15 days after being notified by a public health department or other medical health care provider that a child of less than 6 years of age living in a public housing development has been identified as having an environmental intervention blood lead level, the PHA shall complete a risk assessment of the dwelling unit in which the child lived at the time the blood was last sampled and of common areas servicing the dwelling unit, the provisions of SEC. 35.1115(b) notwithstanding. The risk assessment shall be conducted in accordance with SEC. 35.1320(b) and is considered complete when the PHA receives the risk assessment report. The requirements of this paragraph apply regardless of whether the child is or is not still living in the unit when the PHA receives the notification of the environmental intervention blood lead level. The requirements of this paragraph shall not apply if the PHA conducted a risk assessment of the unit and common areas servicing the unit between the date the child's blood was last sampled and the date {[[Page 345]]} when the PHA received the notification of the environmental intervention blood lead level. If the public health department has already conducted an evaluation of the
Sec. 35.1125 Evaluation and hazard reduction before acquisition and development.
(a) For each residential property constructed before 1978 and proposed to be acquired for a family project (whether or not it will need rehabilitation) a lead-based paint inspection and risk assessment for lead-
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dwelling unit, the requirements of this paragraph shall not apply. (b) Verification. After receiving information from a person who is not a medical health care provider that a child of less than 6 years of age living in a public housing development may have an environmental intervention blood lead level, the PHA shall immediately verify the information with the public health department or other medical health care provider. If that department or provider verifies that the child has an environmental intervention blood lead level, such verification shall constitute notification, and the housing agency shall take the action required in paragraphs (a) and (c) of this section. (c) Hazard reduction. Within 30 days after receiving the report of the risk assessment conducted pursuant to paragraph (a) of this section or the evaluation from the public health department, the PHA shall complete the reduction of lead-based paint hazards identified in the risk assessment in accordance with SEC. 35.1325 or SEC. 35.1330. Hazard reduction is considered complete when clearance is achieved in accordance with SEC. 35.1340 and the clearance report states that all lead-based paint hazards identified in the risk assessment have been treated with interim controls or abatement or the local or State health department certifies that lead-based paint hazard reduction is complete. The requirements of this paragraph do not apply if the PHA, between the date the child's blood was last sampled and the date the owner received the notification of the environmental intervention blood lead level, already conducted a risk assessment of the unit and common areas servicing the unit and completed reduction of identified leadbased paint hazards. (d) Notice of evaluation and hazard reduction. The PHA shall notify building residents of any evaluation or hazard reduction activities in accordance with SEC. 35.125. (e) Reporting requirement. The PHA shall report the name and address of a child
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identified as having an environmental intervention blood lead level to the public health department within 5 working days of being so notified by any other medical health care professional. The PHA shall also report each known case of a child with an environmental intervention blood lead level to the HUD field office. (f) Other units in building. If the risk assessment conducted pursuant to paragraph (a) of this section identifies lead-based paint hazards and previous evaluations of the building conducted pursuant to SEC. 35.1320 did not identify lead-based paint or lead-based paint hazards, the PHA shall conduct a risk assessment of other units of the building in accordance with SEC. 35.1320(b) and shall conduct interim controls of identified hazards in accordance with the schedule provided in SEC. 35.1120(c).
Sec. 35.1135 Eligible costs.
A PHA may use financial assistance received under the modernization program (CIAP or CGP) for the notice, evaluation and reduction of leadbased paint hazards in accordance with SEC. 968.112 of this title. Eligible costs include: (a) Evaluation and insurance costs. Evaluation and hazard reduction activities, and costs for insurance coverage associated with these activities. (b) Planning costs. Planning costs are costs that are incurred before HUD approval of the CGP or CIAP application and that are related to developing the CIAP application or carrying out eligible modernization planning, such as planning for abatement, detailed design work, preparation of solicitations, and evaluation. Planning costs may be funded as a single work item. Planning costs shall not exceed 5 percent of the CIAP funds available to a HUD Field Office in a particular fiscal year. (c) Architectural/engineering and consultant fees. Eligible costs include fees for planning, identification of needs, detailed design work, preparation of
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years of age, common areas servicing such dwelling units, and exterior painted surfaces associated with such dwelling units or common areas. Common areas servicing a dwelling unit include those areas through which residents pass to gain access to the unit and other areas frequented by resident children of less than 6 years of age, including on-site play areas and child care facilities. (2) For the purposes of the Section 8 tenant-based certificate program and the Section 8 voucher program: (i) The requirements of this subpart are applicable where an initial or periodic inspection occurs on or after September 15, 2000; and (ii) The PHA shall be the designated party. (3) For the purposes of formula grants awarded under the Housing Opportunities for Persons with AIDS Program (HOPWA) (42 U.S.C. 12901 et seq.): (i) The requirements of this subpart shall apply to activities for which program funds are first obligated on or after September 15, 2000; and (ii) The grantee shall be the designated party. (4) For the purposes of competitively awarded grants under the HOPWA Program and the Shelter Plus Care program (42 U.S.C. 11402-11407) tenant-based rental assistance component: (i) The requirements of this subpart shall apply to grants awarded pursuant to Notices of Funding Availability published on or after September 15, 2000; and (ii) The grantee shall be the designated party. (5) For the purposes of the HOME program: (i) The requirements of this subpart shall not apply to funds which are committed in accordance with SEC. 92.2 of this title before September 15, 2000; and (ii) The participating jurisdiction shall be the designated party. (6) For the purposes of the Indian Housing Block Grant program:
construction and bid documents and other required documents, evaluation, planning and design for abatement, and inspection of work in progress. (d) Environmental intervention blood lead level response costs. The PHA may use its operating reserves and, when {[[Page 346]]} necessary, may request reimbursement from the current fiscal year CIAP funds, or request the reprogramming of previously approved CIAP funds to cover the costs of evaluation and hazard reduction.
Sec. 35.1140 Insurance coverage.
For the requirements concerning the obligation of a PHA to obtain reasonable insurance coverage with respect to the hazards associated with evaluation and hazard reduction activities, see SEC. 965.215 of this title.
Subpart M_Tenant-Based Rental Assistance
Source: 64 FR 50216, Sept. 15, 1999, unless otherwise noted.
Sec. 35.1200 Purpose and applicability.
(a) Purpose. The purpose of this subpart M is to establish procedures to eliminate as far as practicable lead-based paint hazards in housing occupied by families receiving tenant-based rental assistance. Such assistance includes tenant-based rental assistance under the Section 8 certificate program, the Section 8 voucher program, the HOME program, the Shelter Plus Care program, the Housing Opportunities for Persons With AIDS (HOPWA) program, and the Indian Housing Block Grant program. Tenant-based rental assistance means rental assistance that is not attached to the structure. (b) Applicability. (1) This subpart applies only to dwelling units occupied or to be occupied by families or households that have one or more children of less than 6
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(i) The requirements of this subpart shall apply to activities for which funds are first obligated on or after September 15, 2000; and (ii) The IHBG recipient shall be the designated party. (7) The housing agency, grantee, participating jurisdiction, or IHBG recipient may assign to a subrecipient or other entity the responsibilities of the designated party in this subpart. [64 FR 50216, Sept. 15, 1999; 65 FR 3387, Jan. 21, 2000]
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Sec. 35.1205 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
(b) The owner shall stabilize each deteriorated paint surface in accordance with SEC. 35.1330(a) and (b) before commencement of assisted occupancy. If assisted occupancy has commenced prior to a periodic inspection, such paint stabilization must be completed within 30 days of notification of the owner of the results of the visual assessment. Paint stabilization is considered complete when clearance is achieved in accordance with SEC. 35.1340. (c) The owner shall provide a notice to occupants in accordance with SEC. 35.125(b)(1) and (c) describing the results of the clearance examination.
Sec. 35.1220 Ongoing leadbased paint maintenance activities.
The owner shall incorporate ongoing lead-based paint maintenance activities into regular building operations in accordance with SEC. 35.1355(a).
Sec. 35.1210 Notices and pamphlet.
(a) Notice. In cases where evaluation or paint stabilization is undertaken, {[[Page 347]]} the owner shall provide a notice to residents in accordance with SEC. 35.125. A visual assessment is not an evaluation. (b) Lead hazard information pamphlet. The owner shall provide the lead hazard information pamphlet in accordance with SEC. 35.130.
Sec. 35.1225 Child with an environmental intervention blood lead level.
(a) Within 15 days after being notified by a public health department or other medical health care provider that a child of less than 6 years of age living in an assisted dwelling unit has been identified as having an environmental intervention blood lead level, the designated party shall complete a risk assessment of the dwelling unit in which the child lived at the time the blood was last sampled and of the common areas servicing the dwelling unit. The risk assessment shall be conducted in accordance with SEC. 35.1320(b). When the risk assessment is complete, the designated party shall immediately provide the report of the risk assessment to the owner of the dwelling unit. If the child identified as having an environmental intervention blood lead level is no longer living in the unit when the designated party receives notification from the public health department or other
Sec. 35.1215 Activities at initial and periodic inspection.
(a) (1) During the initial and periodic inspections, an inspector acting on behalf of the designated party and trained in visual assessment for deteriorated paint surfaces in accordance with procedures established by HUD shall conduct a visual assessment of all painted surfaces in order to identify any deteriorated paint. (2) For tenant-based rental assistance provided under the HOME program, visual assessment shall be conducted as part of the initial and periodic inspections required under SEC. 92.209(i) of this title.
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the owner does not complete the hazard reduction required by this section, the dwelling unit is in violation of Housing Quality Standards (HQS). (d) Notice of evaluation and hazard reduction. The owner shall notify building residents of any evaluation or hazard reduction activities in accordance with SEC. 35.125. (e) Reporting requirement. The designated party shall report the name and address of a child identified as having an environmental intervention blood lead level to the public health department within 5 working days of being so notified by any other medical health care professional. (f) Data collection and record keeping responsibilities. At least quarterly, the designated party shall attempt to obtain from the public health department(s) with area(s) of jurisdiction similar to that of the designated party the names and/or addresses of children of less than 6 years of age with an identified environmental intervention blood lead level. At least quarterly, the designated party shall also report an updated list of the addresses of units receiving assistance under a tenant-based rental assistance program to the same public health department(s), except that the report(s) to the public health department(s) is not required if the health department states that it does not wish to receive such report. If it obtains names and addresses of environmental intervention blood lead level children from the public health department(s), the designated party shall match information on cases of environmental intervention blood lead levels with the names and addresses of families receiving tenant-based rental assistance, unless the public health department performs such a matching procedure. If a match occurs, the designated party shall carry out the requirements of this section. Subparts N-Q [Reserved]
medical health care provider, but another household receiving tenant-based rental assistance is living in the unit or is planning to live there, the requirements of this section apply just as they do if the child still lives in the unit. If a public health department has already conducted an evaluation of the dwelling unit, or the designated party conducted a risk assessment of the unit and common areas servicing the unit between the date the child's blood was last sampled and the date when the designated party received the notification of the environmental intervention blood lead level, the requirements of this paragraph shall not apply. (b) Verification. After receiving information from a source other than a public health department or other medical health care provider that a child of less than 6 years of age living in an assisted dwelling unit may have an environmental intervention blood lead level, the designated party shall immediately verify the information with a public health department or other medical health care provider. If that department or provider verifies that the child has an environmental intervention blood lead level, such verification shall constitute notification to the designated party as provided in paragraph (a) of this section, and the designated party shall take the action required in paragraphs (a) and (c) of this section. (c) Hazard reduction. Within 30 days after receiving the risk assessment report from the designated party or the evaluation from the public health department, the owner shall complete the reduction of identified lead-based paint hazards in accordance with SEC. 35.1325 or {[[Page 348]]} Sec. 35.1330. Hazard reduction is considered complete when clearance is achieved in accordance with SEC. 35.1340 and the clearance report states that all leadbased paint hazards identified in the risk assessment have been treated with interim controls or abatement or when the public health department certifies that the leadbased paint hazard reduction is complete. If
Subpart R_Methods and Standards for Lead-Paint
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Hazard Evaluation and Hazard Reduction Activities
Source: 64 FR 50218, Sept. 15, 1999, unless otherwise noted.
Sec. 35.1320 Lead-based paint inspections and risk assessments.
(a) Lead-based paint inspections. Leadbased paint inspections shall be performed in accordance with methods and standards established either by a {[[Page 349]]} State or Indian tribe under a program authorized by EPA, or by EPA at 40 CFR 745.227(b), except that the definition of lead-based paint shall not include a loading (area concentration) or mass concentration greater than that in the definition at SEC. 35.110 of this part. (b) Risk assessments. (1) Risk assessments shall be performed in accordance with methods and standards established either by a State or Indian tribe under a program authorized by EPA, or by EPA at 40 CFR 745.227(d), and paragraph (b)(2) of this section. (2) Risk assessors shall use levels defining dust-lead hazards and soil-lead hazards that are no greater than those promulgated by EPA pursuant to section 403 of the Toxic Substances Control Act (15 U.S.C. 2683), or, if such levels are not in effect, the following for dust or soil: (i) Dust. A dust-lead hazard shall be a dust-lead level equal to or greater than the applicable loading (area concentration), based on wipe samples, in the following table: Interim Dust Lead Standards -------------------------------------------------------------------------------------------------------------Surface ---------------- Interior Evaluation method Floors, [mu]g/ window sills, Window troughs, [mu]g/ft \2\ (mg/m ft \2\ (mg/m [mu]g/ft\2\ \2\) \2\) (mg/m \2\) -------------------------------------------------------------------------------------------------------------Lead Hazard Screen......................... 25 (0.27) 125 (1.4) Not Applicable.
Sec. 35.1300 Purpose and applicability.
The purpose of this subpart R is to provide standards and methods for evaluation and hazard reduction activities required in subparts B, C, D, and F through M of this part.
Sec. 35.1305 Definitions and other general requirements.
Definitions and other general requirements that apply to this subpart are found in subpart B of this part.
Sec. 35.1310 References.
Further guidance information regarding evaluation and hazard reduction activities described in this subpart is found in the following: (a) The HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (Guidelines); (b) The EPA Guidance on Residential Lead-Based Paint, LeadContaminated Dust, and Lead Contaminated Soil; (c) Guidance, methods or protocols issued by States and Indian tribes that have been authorized by EPA under 40 CFR 745.324 to administer and enforce leadbased paint programs.
Sec. 35.1315 Collection and laboratory analysis of samples.
All paint chip, dust, or soil samples shall be collected and analyzed in accordance with standards established either by a State or Indian tribe under a program authorized by EPA in accordance with 40 CFR part 745, subpart Q, or by the EPA in accordance with 40 CFR 745.227, and as further provided in this subpart.
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completed by achieving clearance in accordance with SEC. 35.1340. If encapsulation or enclosure is used as a method of abatement, ongoing lead-based paint maintenance activities shall be performed as required by the applicable subpart of this part in accordance with SEC. 35.1355. Abatement of an intact, factoryapplied prime coating on metal surfaces is not required unless the surface is a friction surface.
Risk Assessment............................ 40 (0.43) 250 (2.7) Not Applicable. Reevaluation............................... 40 (0.43) 250 (2.7) Not Applicable. Clearance.................................. 40 (0.43) 250 (2.7) 800 (8.6). -------------------------------------------------------------------------------------------------------------Note: ``Floors'' includes carpeted and uncarpeted interior floors. (ii) Soil. (A) A soil-lead hazard for play areas frequented by children under 6 years of age shall be bare soil with lead equal to or exceeding 400 micrograms per gram. (B) For other areas, soil-lead hazards shall be bare soil that totals more than 9 square feet (0.8 square meters) per property with lead equal to or exceeding 2,000 micrograms per gram. (3) Lead hazard screens shall be performed in accordance with the methods and standards established either by a State or Indian tribe under a program authorized by EPA, or by EPA at 40 CFR 745.227(c), and paragraph (b)(2) of this section. If the lead hazard screen indicates the need for a follow-up risk assessment (e.g., if dust-lead measurements exceed the levels established for lead hazard screens in this section), a risk assessment shall be conducted in accordance with paragraphs (b)(1) and (b)(2) of this section. Dust, soil, and paint samples collected for the lead hazard screen may be used in the risk assessment. If the lead hazard screen does not indicate the need for a follow-up risk assessment, no further risk-assessment is required. (c) It is strongly recommended, but not required, that lead-based paint inspectors and risk assessors provide a summary of the results suitable for posting or distribution to occupants in compliance with SEC. 35.125.
Sec. 35.1330 Interim controls.
Interim controls of lead-based paint hazards identified in a risk assessment shall be conducted in accordance with the provisions of this section. Interim control measures include paint stabilization of deteriorated paint, treatments for friction and impact surfaces where levels of lead dust are above the {[[Page 350]]} levels specified in SEC. 35.1320, dust control, and lead-contaminated soil control. As provided by SEC. 35.155, interim controls may be performed in combination with, or be replaced by, abatement methods. (a) General requirements. (1) Only those interim control methods identified as acceptable methods in a current risk assessment report shall be used to control identified hazards, except that, if only paint stabilization is required in accordance with subparts F, H, K or M of this part, it shall not be necessary to have conducted a risk assessment. (2) Occupants of dwelling units where interim controls are being performed shall be protected during the course of the work in accordance with SEC. 35.1345. (3) Clearance testing shall be performed at the conclusion of interim control activities in accordance with SEC. 35.1340. (4) A person performing interim controls must be trained in accordance with 29 CFR 1926.59 and either be supervised by an individual certified as a lead-based paint abatement supervisor or have successfully completed one of the following courses:
Sec. 35.1325 Abatement.
Abatement shall be performed in accordance with methods and standards established either by a State or Indian tribe under a program authorized by EPA, or by EPA at 40 CFR 745.227(e), and shall be
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(i) A lead-based paint abatement supervisor course accredited in accordance with 40 CFR 745.225; (ii) A lead-based paint abatement worker course accredited in accordance with 40 CFR 745.225; (iii) The Lead-Based Paint Maintenance Training Program, ``Work Smart, Work Wet, and Work Clean to Work Lead Safe,'' prepared by the National Environmental Training Association for EPA and HUD; (iv) ``The Remodeler's and Renovator's Lead-Based Paint Training Program,'' prepared by HUD and the National Association of the Remodeling Industry; or (v) Another course approved by HUD for this purpose after consultation with EPA. (b) Paint stabilization. (1) Interim control treatments used to stabilize deteriorated lead-based paint shall be performed in accordance with the requirements of this section. Interim control treatments of intact, factory applied prime coatings on metal surfaces are not required. Finish coatings on such surfaces shall be treated by interim controls if those coatings contain lead-based paint. (2) Any physical defect in the substrate of a painted surface or component that is causing deterioration of the surface or component shall be repaired before treating the surface or component. Examples of defective substrate conditions include dryrot, rust, moisture-related defects, crumbling plaster, and missing siding or other components that are not securely fastened. (3) Before applying new paint, all loose paint and other loose material shall be removed from the surface to be treated. Acceptable methods for preparing the surface to be treated include wet scraping, wet sanding, and power sanding performed in conjunction with a HEPA filtered local exhaust attachment operated according to the manufacturer's instructions. (4) Dry sanding or dry scraping is permitted only in accordance with SEC. 35.140(e) (i.e., for electrical safety reasons or for specified minor amounts of work).
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(5) Paint stabilization shall include the application of a new protective coating or paint. The surface substrate shall be dry and protected from future moisture damage before applying a new protective coating or paint. All protective coatings and paints shall be applied in accordance with the manufacturer's recommendations. (6) Paint stabilization shall incorporate the use of safe work practices in accordance with SEC. 35.1350. (c) Friction and impact surfaces. (1) Friction surfaces are required to be treated only if: (i) Lead dust levels on the nearest horizontal surface underneath the friction surface (e.g., the window sill, window trough, or floor) are equal to or greater than the standards specified in 35.1320(b); (ii) There is evidence that the paint surface is subject to abrasion; and (iii) Lead-based paint is known or presumed to be present on the friction surface. (2) Impact surfaces are required to be treated only if: (i) Paint on an impact surface is damaged or otherwise deteriorated; {[[Page 351]]} (ii) The damaged paint is caused by impact from a related building component (such as a door knob that knocks into a wall, or a door that knocks against its door frame); and (iii) Lead-based paint is known or presumed to be present on the impact surface. (3) Examples of building components that may contain friction or impact surfaces include the following: (i) Window systems; (ii) Doors; (iii) Stair treads and risers; (iv) Baseboards; (v) Drawers and cabinets; and (vi) Porches, decks, interior floors, and any other painted surfaces that are abraded, rubbed, or impacted. (4) Interim control treatments for friction surfaces shall eliminate friction points or treat the friction surface so that
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covering or coating, such as metal coil stock, plastic, polyurethane, or linoleum. (3) Surfaces covered by a rug or carpeting shall be cleaned as follows: (i) The floor surface under a rug or carpeting shall be cleaned where feasible, including upon removal of the rug or carpeting, with a HEPA vacuum or other method of equivalent efficacy. (ii) An unattached rug or an attached carpet that is to be removed, and padding associated with such rug or carpet, located in an area of the dwelling unit with dust-lead hazards on the floor, shall be thoroughly vacuumed with a HEPA vacuum or other method of equivalent efficacy. Protective measures shall be used to prevent the spread of dust during removal of a rug, carpet or padding from the dwelling. For example, it shall be misted to reduce dust generation during removal. The item(s) being removed shall be wrapped or otherwise sealed before removal from the worksite. (iii) An attached carpet located in an area of the dwelling unit with dust-lead hazards on the floor shall be thoroughly vacuumed with a HEPA vacuum or other method of equivalent efficacy if it is not to be removed. (f) Soil-lead hazards. (1) Interim control treatments used to control soil-lead hazards shall be performed in accordance with this section. (2) Soil with a lead concentration equal to or greater than 5,000 [mu]g/g of lead shall be abated in accordance with 40 CFR 745.227(e). {[[Page 352]]} (3) Acceptable interim control methods for soil lead are impermanent surface coverings and land use controls. (i) Impermanent surface coverings may be used to treat leadcontaminated soil if applied in accordance with the following requirements. Examples of acceptable impermanent coverings include gravel, bark, sod, and artificial turf. (A) Impermanent surface coverings selected shall be designed to withstand the reasonably-expected traffic. For example, if
paint is not subject to abrasion. Examples of acceptable treatments include rehanging and/or planing doors so that the door does not rub against the door frame, and installing window channel guides that reduce or eliminate abrasion of painted surfaces. Paint on stair treads and floors shall be protected with a durable cover or coating that will prevent abrasion of the painted surfaces. Examples of acceptable materials include carpeting, tile, and sheet flooring. (5) Interim control treatments for impact surfaces shall protect the paint from impact. Examples of acceptable treatments include treatments that eliminate impact with the paint surface, such as a door stop to prevent a door from striking a wall or baseboard. (6) Interim control for impact or friction surfaces does not include covering such a surface with a coating or other treatment, such as painting over the surface, that does not protect lead-based paint from impact or abrasion. (d) Chewable surfaces. (1) Chewable surfaces are required to be treated only if there is evidence that a child of less than 6 years of age has chewed on the painted surface, and lead-based paint is known or presumed to be present on the surface. (2) Interim control treatments for chewable surfaces shall make the lead-based paint inaccessible for chewing by children of less than 6 years of age. Examples include enclosures or coatings that cannot be penetrated by the teeth of such children. (e) Dust-lead hazard control. (1) Interim control treatments used to control dust-lead hazards shall be performed in accordance with the requirements of this section. Additional information on dust removal is found in the HUD Guidelines, particularly Chapter 11 (see SEC. 35.1310). (2) Dust control shall involve a thorough cleaning of all horizontal surfaces, such as interior window sills, window troughs, floors, and stairs, but excluding ceilings. All horizontal surfaces, such as floors, stairs, window sills and window troughs, that are rough, pitted, or porous shall be covered with a smooth, cleanable
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the area to be treated is heavily traveled, neither grass or sod shall be used. (B) When loose impermanent surface coverings such as bark or gravel are used, they shall be applied in a thickness not less than six inches deep. (C) The impermanent surface covering material shall not contain more than 200 [mu]g/g of lead. (D) Adequate controls to prevent erosion shall be used in conjunction with impermanent surface coverings. (ii) Land use controls may be used to reduce exposure to soil-lead hazards only if they effectively control access to areas with soil-lead hazards. Examples of land use controls include: fencing, warning signs, and landscaping. (A) Land use controls shall be implemented only if residents have reasonable alternatives to using the area to be controlled. (B) If land use controls are used for a soil area that is subject to erosion, measures shall be taken to contain the soil and control dispersion of lead.
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(d) Bare residential soil. Bare soil shall be treated in accordance with the requirements of SEC. 35.1330, unless it is found not to be a soil-lead hazard in accordance with SEC. 35.1320(b). (e) Safe work practices. All standard treatments described in paragraphs (a) through (d) of this section shall incorporate the use of safe work practices in accordance with SEC. 35.1350. (f) Clearance. A clearance examination shall be performed in accordance with SEC. 35.1340 at the conclusion of any lead hazard reduction activities. (g) Qualifications. An individual performing standard treatments must meet the training and/or supervision requirements of SEC. 35.1330(a)(4).
Sec. 35.1340 Clearance.
Clearance examinations required under subparts B, C, D, F through M, and R, of this part shall be performed in accordance with the provisions of this section. (a) Clearance following abatement. Clearance examinations performed following abatement of lead-based paint or lead-based paint hazards shall be performed in accordance with 40 CFR 745.227(e) and paragraphs (c)-(f) of this section. Such clearances shall be performed by a person certified to perform risk assessments or leadbased paint inspections. (b) Clearance following activities other than abatement. Clearance examinations performed following interim controls, paint stabilization, standard treatments, ongoing lead-based paint maintenance, or rehabilitation shall be performed in accordance with the requirements of this paragraph (b) and paragraphs (c)-(g) of this section. (1) Qualified personnel. Clearance examinations shall be performed by: (i) A certified risk assessor; (ii) A certified lead-based paint inspector; (iii) A person who has successfully completed a training course for clearance technicians (or a discipline of similar
Sec. 35.1335 Standard treatments.
Standard treatments shall be conducted in accordance with this section. (a) Paint stabilization. All deteriorated paint on exterior and interior surfaces located on the residential property shall be stabilized in accordance with SEC. 35.1330(a)(b), or abated in accordance with SEC. 35.1325. (b) Smooth and cleanable horizontal surfaces. All horizontal surfaces, such as uncarpeted floors, stairs, interior window sills and window troughs, that are rough, pitted, or porous, shall be covered with a smooth, cleanable covering or coating, such as metal coil stock, plastic, polyurethane, or linoleum. (c) Correcting dust-generating conditions. Conditions causing friction or impact of painted surfaces shall be corrected in accordance with SEC. 35.1330(c)(4)-(6).
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(ii) The visual assessment shall be performed to determine if deteriorated paint surfaces and/or visible amounts of dust, debris, paint chips or other residue are still present. Both exterior and interior painted surfaces shall be examined for the presence of deteriorated paint. If deteriorated paint or visible dust, debris or residue are present in areas subject to dust sampling, they must be eliminated prior to the continuation of the clearance examination, except elimination of deteriorated paint is not required if it has been determined, through paint testing or a lead-based paint inspection, that the deteriorated paint is not lead-based paint. If exterior painted surfaces have been disturbed by the hazard reduction, maintenance or rehabilitation activity, the visual assessment shall include an assessment of the ground and any outdoor living areas close to the affected exterior painted surfaces. Visible dust or debris in living areas shall be cleaned up and visible paint chips on the ground shall be removed. (iii) Dust samples shall be wipe samples and shall be taken on floors and, where practicable, interior window sills and window troughs. Dust samples shall be collected and analyzed in accordance with SEC. 35.1315 of this part. (iv) Clearance reports shall be prepared in accordance with paragraph (c) of this section. (c) Clearance report. When clearance is required, the designated party shall ensure that a clearance report is prepared that provides documentation of the hazard reduction or maintenance activity as well as the clearance examination. When abatement is performed, the report shall be an abatement report in accordance with 40 CFR 745.227(e)(10). When another hazard reduction or maintenance activity requiring a clearance report is performed, the report shall include the following information: (1) The address of the residential property and, if only part of a multifamily property is affected, the specific dwelling units and common areas affected. (2) The following information on the clearance examination:
purpose and title) that is developed or accepted by EPA or a State or {[[Page 353]]} tribal program authorized by EPA pursuant to 40 CFR part 745, subpart Q, and that is given by a training provider accredited by EPA or a State or Indian tribe for training in lead-based paint inspection or risk assessment, provided a certified risk assessor or a certified lead-based paint inspector approves the work of the clearance technician and signs the report of the clearance examination; or (iv) A technician licensed or certified by EPA or a State or Indian tribe to perform clearance examinations without the approval of a certified risk assessor or certified leadbased paint inspector, provided that a clearance examination by such a licensed or certified technician shall be performed only for a single-family property or individual dwelling units and associated common areas in a multi-unit property, and provided further that a clearance examination by a such a licensed or certified clearance technician shall not be performed using random sampling of dwelling units or common areas in multifamily properties, except that a clearance examination performed by such a licensed or certified clearance technician is acceptable for any residential property if the clearance examination is approved and the report signed by a certified risk assessor or a certified lead-based paint inspector. (2) Required activities. (i) Clearance examinations shall include a visual assessment, dust sampling, submission of samples for analysis for lead, interpretation of sampling results, and preparation of a report. Clearance examinations shall be performed in dwelling units, common areas and exterior areas in accordance with this section and the steps set forth at 40 CFR 745.227(e)(8). If clearance is being performed for more than 10 dwelling units of similar construction and maintenance, as in a multifamily property, random sampling for the purposes of clearance may be conducted in accordance with 40 CFR 745.227(e)(9).
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(i) The date(s) of the clearance examination; (ii) The name, address, and signature of each person performing the clearance examination, including certification number; (iii) The results of the visual assessment for the presence of deteriorated {[[Page 354]]} paint and visible dust, debris, residue or paint chips; (iv) The results of the analysis of dust samples, in [mu]g/sq.ft., by location of sample; and (v) The name and address of each laboratory that conducted the analysis of the dust samples, including the identification number for each such laboratory recognized by EPA under section 405(b) of the Toxic Substances Control Act (15 U.S.C. 2685(b)). (3) The following information on the hazard reduction or maintenance activity for which clearance was performed: (i) The start and completion dates of the hazard reduction or maintenance activity; (ii) The name and address of each firm or organization conducting the hazard reduction or maintenance activity and the name of each supervisor assigned; (iii) A detailed written description of the hazard reduction or maintenance activity, including the methods used, locations of exterior surfaces, interior rooms, common areas, and/or components where the hazard reduction activity occurred, and any suggested monitoring of encapsulants or enclosures; and (iv) If soil hazards were reduced, a detailed description of the location(s) of the hazard reduction activity and the method(s) used. (d) Standards. The clearance standards in SEC. 35.1320(b)(2) shall apply. If test results equal or exceed the standards, the dwelling unit, worksite, or common area represented by the sample fails the clearance examination. (e) Clearance failure. All surfaces represented by a failed clearance sample shall be recleaned or treated by hazard reduction, and retested, until the applicable
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clearance level in SEC. 35.1320(b)(2) is met. (f) Independence. Clearance examinations shall be performed by persons or entities independent of those performing hazard reduction or maintenance activities, unless the designated party uses qualified inhouse employees to conduct clearance. An in-house employee shall not conduct both a hazard reduction or maintenance activity and its clearance examination. (g) Worksite clearance. When clearance is of an interior worksite, not an entire dwelling unit or residential property, dust samples taken for paragraph (b) of this section shall be taken from the floor and window (if available) to represent the area within the dust containment area. Clearance is not required if maintenance or hazard reduction activities in the worksite do not disturb painted surfaces of a total area more than that set forth in SEC. 35.1350(d)
Sec. 35.1345 Occupant protection and worksite preparation.
This section establishes procedures for protecting dwelling unit occupants and the environment from contamination from leadcontaminated or lead-containing materials during hazard reduction activities. (a) Occupant protection. (1) Occupants shall not be permitted to enter the worksite during hazard reduction activities (unless they are employed in the conduct of these activities at the worksite), until after hazard reduction work has been completed and clearance, if required, has been achieved. (2) Occupants shall be temporarily relocated before and during hazard reduction activities to a suitable, decent, safe, and similarly accessible dwelling unit that does not have lead-based paint hazards, except if: (i) Treatment will not disturb leadbased paint, dust-lead hazards or soil-lead hazards; (ii) Only the exterior of the dwelling unit is treated, and windows, doors, ventilation intakes and other openings in or near the worksite are sealed during hazard
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exterior hazard reduction activity, where it is easily read 20 feet (6 meters) from the edge of the hazard reduction activity worksite. Each warning sign shall be as described in 29 CFR 1926.62(m), except that it shall be posted irrespective of employees' lead exposure and, to the extent practicable, provided in the occupants' primary language.
control work and cleaned afterward, and entry free of dust-lead hazards, soil-lead hazards, and debris is provided; (iii) Treatment of the interior will be completed within one period of 8-daytime hours, the worksite is contained so as to prevent the release of leaded dust and debris into other areas, and treatment does not create other safety, health or environmental hazards (e.g., exposed live electrical wiring, release of toxic fumes, or on-site disposal of hazardous waste); or (iv) Treatment of the interior will be completed within 5 calendar days, the worksite is contained so as to prevent {[[Page 355]]} the release of leaded dust and debris into other areas, treatment does not create other safety, health or environmental hazards; and, at the end of work on each day, the worksite and the area within at least 10 feet (3 meters) of the containment area is cleaned to remove any visible dust or debris, and occupants have safe access to sleeping areas, and bathroom and kitchen facilities. (3) The dwelling unit and the worksite shall be secured against unauthorized entry, and occupants' belongings protected from contamination by dust-lead hazards and debris during hazard reduction activities. Occupants' belongings in the containment area shall be relocated to a safe and secure area outside the containment area, or covered with an impermeable covering with all seams and edges taped or otherwise sealed. (b) Worksite preparation. (1) The worksite shall be prepared to prevent the release of leaded dust, and contain leadbased paint chips and other debris from hazard reduction activities within the worksite until they can be safely removed. Practices that minimize the spread of leaded dust, paint chips, soil and debris shall be used during worksite preparation. (2) A warning sign shall be posted at each entry to a room where hazard reduction activities are conducted when occupants are present; or at each main and secondary entryway to a building from which occupants have been relocated; or, for an
Sec. 35.1350 Safe work practices.
(a) Prohibited methods. Methods of paint removal listed in SEC. 35.140 shall not be used. (b) Occupant protection and worksite preparation. Occupants and their belongings shall be protected, and the worksite prepared, in accordance with SEC. 35.1345. (c) Specialized cleaning. After hazard reduction activities have been completed, the worksite shall be cleaned using cleaning methods, products, and devices that are successful in cleaning up dust-lead hazards, such as a HEPA vacuum or other method of equivalent efficacy, and lead-specific detergents or equivalent. (d) De minimis levels. Safe work practices are not required when maintenance or hazard reduction activities do not disturb painted surfaces that total more than: (1) 20 square feet (2 square meters) on exterior surfaces; (2) 2 square feet (0.2 square meters) in any one interior room or space; or (3) 10 percent of the total surface area on an interior or exterior type of component with a small surface area. Examples include window sills, baseboards, and trim.
Sec. 35.1355 Ongoing leadbased paint maintenance and reevaluation activities.
(a) Maintenance. Maintenance activities shall be conducted in accordance with paragraphs (a)(2)-(6) of this section, except as provided in paragraph (a)(1) of this section.
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(1) Maintenance activities need not be conducted in accordance with this section if both of the following conditions are met, as applicable: (i) Either a lead-based paint inspection indicates that no leadbased paint is present in the dwelling units, common areas, and on exterior surfaces, or a clearance report prepared in accordance with SEC. 35.1340(a) indicates that all lead-based paint has been removed; and (ii) If a risk assessment is required by the applicable subpart of this part, a current risk assessment indicates that no soil-lead hazards and no dust-lead hazards are present. (2) A visual assessment for deteriorated paint, bare soil, and the failure of any hazard reduction measures shall be performed at unit turnover and every twelve months. (3) (i) Deteriorated paint. All deteriorated paint on interior and exterior surfaces located on the residential property shall be stabilized in accordance with SEC. 35.1330(a)(b), except for any {[[Page 356]]} paint that an evaluation has found is not lead-based paint. (ii) Bare soil. All bare soil shall be treated with standard treatments in accordance with SEC. 35.1335(d) through (g), or interim controls in accordance with SEC. 35.1330(a) and (f); except for any bare soil that a current evaluation has found is not a soil-lead hazard. (4) Safe work practices, in accordance with SEC. 35.1350, shall be used when performing any maintenance or renovation work that disturbs paint that may be leadbased paint. (5) Any encapsulation or enclosure of lead-based paint or lead-based paint hazards which has failed to maintain its effectiveness shall be repaired, or abatement or interim controls shall be performed in accordance with SEC. Sec. 35.1325 or 35.1330, respectively. (6) Clearance testing of the worksite shall be performed at the conclusion of
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repair, abatement or interim controls in accordance with SEC. 35.1340. (7) Each dwelling unit shall be provided with written notice asking occupants to report deteriorated paint and, if applicable, failure of encapsulation or enclosure, along with the name, address and telephone number of the person whom occupants should contact. The language of the notice shall be in accordance with SEC. 35.125(c)(3). The designated party shall respond to such report and stabilize the deteriorated paint or repair the encapsulation or enclosure within 30 days. (b) Reevaluation. Reevaluation shall be conducted in accordance with this paragraph (b), and the designated party shall conduct interim controls of lead-based paint hazards found in the reevaluation. (1) Reevaluation shall be conducted if hazard reduction has been conducted to reduce lead-based paint hazards found in a risk assessment or if standard treatments have been conducted, except that reevaluation is not required if any of the following cases are met: (i) An initial risk assessment found no lead-based paint hazards; (ii) A lead-based paint inspection found no lead-based paint; or (iii) All lead-based paint was abated in accordance with SEC. 35.1325, provided that no failures of encapsulations or enclosures have been found during visual assessments conducted in accordance with SEC. 35.1355(a)(2) or during other observations by maintenance and repair workers in accordance with SEC. 35.1355(a)(5) since the encapsulations or inclosures were performed. (2) Reevaluation shall be conducted to identify: (i) Deteriorated paint surfaces with known or suspected lead-based paint; (ii) Deteriorated or failed interim controls of lead-based paint hazards or encapsulation or enclosure treatments; (iii) Dust-lead hazards; and (iv) Soil that is newly bare with lead levels equal to or above the standards in SEC. 35.1320(b)(2).
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measures, ongoing maintenance activities, and relevant building operations. (ii) Visual assessment. The risk assessor shall: (A) Visually evaluate all lead-based paint hazard reduction treatments, any known or suspected lead-based paint, any deteriorated paint, and each exterior site, and shall identify any new areas of bare soil; (B) Determine acceptable options for controlling the hazard; and (C) Await the correction of any hazard reduction omission or failure and the reduction of any lead-based paint hazard before sampling any dust or soil the risk assessor determines may reasonably be associated with such hazard. (iii) Reaction to hazard reduction omission or failure. If any hazard reduction control has not been implemented or is failing (e.g., an encapsulant is peeling away from the wall, a paint-stabilized surface is no longer intact, or gravel covering an area of bare soil has worn away), or deteriorated lead-based paint is present, the risk assessor shall: (A) Determine acceptable options for controlling the hazard; and (B) Await the correction of any hazard reduction omission or failure and the reduction of any lead-based paint hazard before sampling any dust or soil the risk assessor determines may reasonably be associated with such hazard. (iv) Selected paint, soil and dust evaluation. (A) The risk assessor shall sample deteriorated paint surfaces identified during the visual assessment and have the samples analyzed, in accordance with 40 CFR 745.227(b)(3)(4), but only if reliable information about lead content is unavailable. (B) The risk assessor shall evaluate new areas of bare soil identified during the visual assessment. Soil samples shall be collected and analyzed in accordance with 40 CFR 745.227(d)(8)-(11), but only if the soil lead levels have not been previously measured. (C) The risk assessor shall take selected dust samples and have them analyzed. Dust
(3) Each reevaluation shall be performed by a certified risk assessor. (4) Each reevaluation shall be conducted in accordance with the following schedule if a risk assessment or other evaluation has found deteriorated lead-based paint in the residential property, a soil-lead hazard, or a dust-lead hazard on a floor or interior window sill. (Window troughs are not sampled during reevaluation). The first reevaluation shall be conducted no later than two years from completion of hazard reduction. Subsequent reevaluation shall be conducted at intervals of two years, plus or minus 60 days. To be exempt from additional reevaluation, at least two consecutive reevaluations conducted at such two-year intervals must be conducted without finding lead-based paint hazards or a failure of an encapsulation or enclosure. If, however, a reevaluation finds lead-based paint hazards or a failure, at least two more consecutive reevaluations conducted at such two year intervals must be conducted without finding lead-based paint hazards or a failure. (5) Each reevaluation shall be performed as follows: (i) Dwelling units and common areas shall be selected and reevaluated in accordance with SEC. 35.1320(b). (ii) The worksites of previous hazard reduction activities that are similar on the basis of their original lead-based paint hazard and type of treatment shall be grouped. Worksites within such groups shall be selected and reevaluated in accordance with SEC. 35.1320(b). {[[Page 357]]} (6) Each reevaluation shall include reviewing available information, conducting selected visual assessment, recommending responses to hazard reduction omissions or failures, performing selected evaluation of paint, soil and dust, and recommending response to newly-found leadbased paint hazards. (i) Review of available information. The risk assessor shall review any available past evaluation, hazard reduction and clearance reports, and any other available information describing hazard reduction
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samples shall be collected and analyzed in accordance with SEC. 35.1320(b). At least two composite samples, one from floors and the other from interior window sills, shall be taken in each dwelling unit and common area selected. Each composite sample shall consist of four individual samples, each collected from a different room or area. If the dwelling unit contains both carpeted and uncarpeted living areas, separate floor samples are required from the carpeted and uncarpeted areas. Equivalent single-surface sampling may be used instead of composite sampling. (7) The risk assessor shall provide the designated party with a written report documenting the presence or absence of lead-based paint hazards, the current status of any hazard reduction and standard treatment measures used previously and any newly-conducted evaluation and hazard reduction activities. The report shall include the information in 40 CFR 745.227(d)(11), and shall: (i) Identify any lead-based paint hazards previously detected and discuss the effectiveness of any hazard reduction or standard treatment measures used, and list those for which no measures have been used. (ii) Describe any new hazards found and present the owner with acceptable control options and their accompanying reevaluation schedules. (iii) Identify when the next reevaluation, if any, must occur, in accordance with the requirements of paragraph (b)(4) of this section. (c) Response to the reevaluation. (1) Hazard reduction omission or failure found by a reevaluation. The designated party shall respond in accordance with paragraph (b)(6)(iii)(A) of this section to a report by the risk assessor of a hazard reduction control that has not been implemented or is failing, or that {[[Page 358]]} deteriorated lead-based paint is present. (2) Newly-identified lead-based paint hazard found by a reevaluation. The designated party shall treat each:
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(i) Dust-lead hazard or paint lead hazard by cleaning or hazard reduction measures, which are considered completed when clearance is achieved in accordance with SEC. 35.1340. (ii) Soil-lead hazard by hazard reduction measures, which are considered completed when clearance is achieved in accordance with SEC. 35.1340.
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(1) Constructed or altered by or on behalf of the United States; (2) Leased in whole or in part by the United States after August 12, 1968, if constructed or altered in accordance with plans and specifications of the United States; or (3) Financed in whole or in part by a grant or loan made by the United States after August 12, 1968, if such residential structure is subject to standards for design, construction, or alteration issued under authority of the law authorizing such grant or loan. (b) As used in this part, residential structure includes the following: (1) Any residential structure which, in whole or in part, is intended for occupancy by the physically handicapped or designed for occupancy by the elderly; (2) All elevator residential structures; (3) Any residential structure that contains 15 or more housing units, unless otherwise specifically prescribed by the Uniform Federal Accessibility Standards contained in appendix A to this part. (4) Nonresidential structures appurtenant to a residential structure covered under this part. [36 FR 24437, Dec. 22, 1971, as amended at 49 FR 31620, Aug. 7, 1984]
24 CFR 40 Accessibility Standards
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 358-359] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 40_ACCESSIBILITY STANDARDS FOR DESIGN, CONSTRUCTION, AND ALTERATION OF PUBLICLY OWNED RESIDENTIAL STRUCTURES 40.1 Purpose. 40.2 Definition of ``residential structure''. 40.3 Applicability. 40.4 Standards. 40.5 [Reserved] 40.6 Records. 40.7 Availability of Accessibility Standards. Authority: 42 U.S.C. 3535(d), 4153. Source: 36 FR 24437, Dec. 22, 1971, unless otherwise noted.
Sec. 40.3 Applicability. Sec. 40.1 Purpose.
This part prescribes standards for the design, construction, and alteration of publicly owned residential structures to insure that physically handicapped persons will have ready access to, and use of, such structures. (a) The standards prescribed in SEC. 40.4 are applicable to residential structures designed after the effective date of this part. If the design of a structure commenced prior to that date, the standards shall be made applicable to the maximum extent practicable, as determined by the head of the department, agency, or instrumentality of the United States concerned. If no design stage is involved in the construction or alteration of a residential structure, the standards of SEC. 40.4 shall be applicable to construction or alteration for which bids are solicited after the effective date of this part. (b) The standards prescribed in SEC. 40.4 are not applicable to:
Sec. 40.2 Definition of ``residential structure''.
(a) As used in this part, the term residential structure means a residential structure (other than a privately owned residential structure and a residential structure on a military reservation):
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(1) Any portion of a residential structure or its grounds which need not, because of its intended use, be made accessible to, or usable by, the public or by physically handicapped persons; (2) The alteration of an existing residential structure to the extent that the alteration does not involve work which is related to the standards of this part; or (3) The alteration of an existing building, or of such portions thereof, to which application of the standards is not structurally feasible. {[[Page 359]]}
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Opportunity, U.S. Department of Housing and Urban Development, Room 5230, 451 Seventh Street, SW., Washington, DC 20410, telephone (202) 755-5404 (this is not a toll-free number). Hearing or speechimpaired individuals may call HUD's TDD number (202) 708-0113 or 1-800-877-8399 (Federal Information Relay Service TDD). (Other than the ``800'' number, these are not toll-free numbers.) [61 FR 5204, Feb. 9, 1996]
Sec. 40.4 Standards.
Residential structures subject to this part shall be designed, constructed or altered to ensure that physically handicapped persons have access to, and use of, these structures. This requirement is satisfied by using the specifications contained in appendix A to this part, the Uniform Federal Accessibility Standards (UFAS). [49 FR 31621, Aug. 7, 1984]
Sec. 40.5 [Reserved] Sec. 40.6 Records.
The administering agency's file on each contract, grant, or loan involving the design, construction, or alteration of a residential structure shall include appropriate documentation indicating: (a) That the standards prescribed in SEC. 40.4 are applicable to and have been or will be incorporated in the residential structure, or (b) that the grant or loan has been or will be made subject to the requirement that the standards are applicable and will be incorporated in the residential structure. The file should also indicate any modification or waiver of the standards which has been issued by the Secretary of HUD.
Sec. 40.7 Availability of Accessibility Standards.
Copies of the Uniform Federal Accessibility Standards are available from the Office of Fair Housing and Equal
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(b) By regulation or contract under any other program of the Department, except a program subject only to standards or requirements at 24 CFR part 8 imposed pursuant to section 504 of the Rehabilitation Act of 1973. The policies and procedures of this part shall apply after the effective date of these regulations to all complaints received, and/or findings of noncompliance made, regarding buildings or facilities subject to such regulatory or contractural requirements.
24 CFR 41 Accessibility By The Physically Handicapped
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 359-362] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 41_POLICIES AND PROCEDURES FOR THE ENFORCEMENT OF STANDARDS AND REQUIREMENTS FOR ACCESSIBILITY BY THE PHYSICALLY HANDICAPPED 41.1 Applicability. 41.2 Definitions. 41.3 Assurance and declaration required. 41.4 Waiver or modification of standards. 41.5 Achieving compliance. 41.6 Matters involving the Architectural and Transportation Barriers Compliance Board. Authority: Architectural Barriers Act of 1968, as amended by Pub. L. 90-480, 42 U.S.C. 4151 et seq. Source: 44 FR 62806, Oct. 31, 1979, unless otherwise noted.
Sec. 41.2 Definitions.
As used in this part, the term Secretary means the Secretary of Housing and Urban Development, or to the extent of any delegation of authority by the Secretary to act under this part, {[[Page 360]]} any other Department Official to whom authority has been delegated.
Sec. 41.3 Assurance and declaration required.
(a) Each Assistant Secretary shall, as a condition for approval of any contract or application for assistance under a program imposing standards and/or requirements for accessibility which are subject to this part, require an assurance of compliance with those standards and requirements. Such assurance shall be in a form acceptable to the Secretary. (b) For each project covered under this part, except a project subject to Departmental examinations and inspections as set forth in SEC. 41.5(a), the responsible Assistant Secretary shall require a declaration as to project drawings, specifications, and other construction documents. The declaration shall be signed by the licensed, or registered, architect or engineer, or by such other responsible official as designated by HUD, who has prepared such construction documents. The declaration shall affirm that the proposed project, to the best knowledge and belief of the declarer, conforms to applicable accessibility design standards and
Sec. 41.1 Applicability.
This part sets forth policies and procedures for the enforcement of standards and requirements for accessibility by the physically handicapped imposed: (a) For nonresidential buildings or facilities by regulations issued by the General Services Administration at subchapter D of the Federal Property Management Regulations, subpart 101-19.6-Accommodations for the Physically Handicapped, or
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requirements. The declaration statement shall be in a form acceptable to the Secretary.
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Sec. 41.4 Waiver or modification of standards.
(a) The applicability of standards and requirements for accessibility by the physically handicapped may be waived or modified on a case-by-case basis upon a written request from a recipient of a Departmental grant or loan or from a Departmental agency leasing a building or facility. (b) For residential buildings or facilities, a waiver or modification may be granted only by the Secretary. (c) Upon the recommendation of an Assistant Secretary, a waiver or modification for nonresidential buildings or facilities may be granted only by the Administrator, General Services Administration. (d) No request for a waiver or modification shall be recommended for approval by an Assistant Secretary or approved by the Secretary unless the following criteria obtain: (1) The granting of the waiver or modification is based upon findings of fact, and is not inconsistent with the provisions of the Architectural Barriers Act, and (2) Application of the requirement or standard would adversely affect the purposes of the Departmental program under which the loan or grant is being provided or for which the building or facility is being leased. (e) Requests for a waiver or modification shall be submitted to the appropriate Assistant Secretary for review. Each request shall include: (1) The name and address of the requestor. (2) The name and location of the involved building or facility. (3) Any applicable plans, drawings, specifications or other descriptions of the building or facility.
(4) The standard provision or requirement from which the requestor seeks a waiver or modification. (5) A description of the building or facility as to its accessibility for the physically handicapped and how the waiving or modification of a standard or requirement would affect that accessibility. (6) A statement of the facts which establish that the criteria of paragraph (d) of this section would be satisfied. (7) A description of the steps taken, or to be taken, to comply with standards and requirements for which a waiver or modification is not being requested. (8) Such other information as the requestor or the responsible Assistant Secretary deems appropriate or necessary. (f) If the responsible Assistant Secretary finds that the criteria of paragraph (d) of this section are satisfied, then he or she shall submit the request along with his or her recommendations to the Secretary for action or for referral to the Administrator, General Services Administration for action. In reviewing request for waiver and modifications, the Secretary shall assure consistent Department policy regarding the removal of architectural barriers and accessibility by physically handicapped persons. {[[Page 361]]} (g) All waivers and modifications granted pursuant to this part shall have only future effect on; and are limited to cases for which the request is made.
Sec. 41.5 Achieving compliance.
(a) Examinations and inspections. If, for any project, an Assistant Secretary requires Departmental architectural and engineering examinations of drawings and specifications or other construction documents or requires Departmental architectural and engineering inspections during or upon completion of construction, those examinations and inspections shall include a determination of compliance with standards and requirements for accessibility referenced in this part.
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of the date of such referral regarding the action taken and the schedule and means of achieving compliance, except that the Secretary may specify a shorter or longer reporting period, as deeded appropriate. (f) Disposition of unresolved complaints. Unresolved complaints shall be referred to the Architectural and Transportation Barriers Compliance Board to be processed in accordance with 36 CFR part 1150. A complaint shall be deemed unresolved if it is not resolved within 90 days of the date of the filing of the complaint with the Department. (g) Compliance action by other individuals. Individuals other than the Secretary may receive complaints and undertake other appropriate actions to achieve compliance with requirements subject to this part, so long as initial notification of such complaints or proposed actions is given both to the Secretary and the appropriate Assistant Secretary.
(b) Periodic compliance reviews. The Secretary, in consultation with the appropriate Assistant Secretary, shall conduct surveys and investigations as deemed appropriate to achieve compliance with standards or requirements subject to this part. (c) Complaints. Any interested person who has reason to believe that there has been noncompliance with standards or requirements subject to this part, may, by himself or herself, or by a representative, file a written complaint with the responsible Department Official or with the Architectural and Transportation Barriers Compliance Board, Washington, DC 20201. (d) Investigations. The Secretary shall, after consultation with the appropriate Assistant Secretary, make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with standards or requirements subject to this part. The investigation should include a determination of the authority under which the standards or requirements were imposed and, where appropriate, a review of the records kept pursuant to 24 CFR 40.6; the circumstances under which the building of facility was designed, constructed or altered; and other factors relevant to a determination as to whether there has been noncompliance with this part. (e) Resolution of matters. (1) If any examination, inspection, periodic compliance review, complaint, or investigation pursuant to this section indicates a failure to comply with the applicable standards or requirements, the Secretary shall attempt to gain voluntary compliance whenever possible. (2) If it has been determined that voluntary compliance cannot be achieved, the Secretary shall refer the matter to the appropriate Assistant Secretary for action pursuant to his or her program authority regarding the residential structure or other building or facility under investigation, to achieve compliance with the requirements subject to this part. The Assistant Secretary shall report to the Secretary within 30 days
Sec. 41.6 Matters involving the Architectural and Transportation Barriers Compliance Board.
(a) Complaints. With respect to any complaint referred to the responsible Department Official by the Architectural and Transportation Barriers Compliance Board (A&TBCB), the procedures set forth in this part shall apply. In such a case, the Secretary shall coordinate all investigations and/or other compliance actions to assure that the Department resolves any architectural barriers deficiencies so as to respond to the A&TBCB within its {[[Page 362]]} required 60-day period set forth at 36 CFR 1150.41 for the informal resolution of complaints. (b) Citations. The Office of General Counsel shall, with the assistance of the appropriate Assistant Secretary, respond to any citation issued by the A&TBCB to the Department alleging noncompliance with the standards issued pursuant to the
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Architectural Barriers Act of 1968, as amended. The applicable procedures regarding such a citation are set forth at 36 CFR part 1150.
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24 CFR 42 Displacement, Relocation Assistance
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 362-366] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 42_DISPLACEMENT, RELOCATION ASSISTANCE, AND REAL PROPERTY ACQUISITION FOR HUD AND HUD-ASSISTED PROGRAMS Subpart A_General 42.1 Applicable rules. Subpart B [Reserved] Subpart C_Requirements Under Section 104(d)of Housing and Community Development Act of 1974 42.301 Applicability. 42.305 Definitions. 42.325 Residential antidisplacement and relocation assistance plan. 42.350 Relocation assistance for displaced persons. 42.375 One-for-one replacement of lower-income dwelling units. 42.390 Appeals. Authority: 42 U.S.C. 3535(d), 4601, 5304, and 12705(b). Source: 61 FR 51757, Oct. 3, 1996, unless otherwise noted.
Subpart A_General
Sec. 42.1 Applicable rules.
(a) URA. HUD-assisted programs and projects are subject to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 (URA) (42 U.S.C. 4601), and implementing regulations issued by the
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rental assistance the household would receive. Conversion. (1) This term means altering a housing unit so that it is: (i) Used for nonhousing purposes; (ii) Used for housing purposes, but no longer meets the definition of lower-income dwelling unit; or (iii) Used as an emergency shelter. {[[Page 363]]} (2) A housing unit that continues to be used for housing after completion of the project is not considered a ``conversion'' if, upon completion of the project, the unit is owned and occupied by a person who owned and occupied the unit before the project. Displaced person means a lowerincome person who, in connection with an activity assisted under any program subject to this subpart, permanently moves from real property or permanently moves personal property from real property as a direct result of the demolition or conversion of a lowerincome dwelling. For purposes of this definition, a permanent move includes a move made permanently and: (1) After notice by the grantee to move from the property following initial submission to HUD of the consolidated plan required of entitlement grantees pursuant to SEC. 570.302; of an application for assistance pursuant to SEC. Sec. 570.426, 570.430, or 570.465 that is thereafter approved; or an application for loan assistance under SEC. 570.701 that is thereafter approved; (2) After notice by the property owner to move from the property, following the submission of a request for financial assistance by the property owner (or other person in control of the site) that is thereafter approved; or (3) Before the dates described in this definition, if HUD or the grantee determine that the displacement was a direct result of conversion or demolition in connection with an activity subject to this subpart for which financial assistance has been requested and is thereafter approved.
Department of Transportation at 49 CFR part 24. (b) Section 104(d). In addition to the URA, the Community Development Block Grant (CDBG), Urban Development Action Grant (UDAG), and HOME Investment Partnerships (HOME) programs are also subject to section 104(d) of the Housing and Community Development Act of 1974 (42 U.S.C. 5304(d)). The provisions applicable to these programs are set out in subpart C of this part. (c) Additional requirements. Applicable program regulations may contain additional relocation provisions.
Subpart B [Reserved] Subpart C_Requirements Under Section 104(d) of Housing and Community Development Act of 1974
Sec. 42.301 Applicability.
This subpart applies only to CDBG grants under 24 CFR part 570, subparts D, F, and I (Entitlement grants, HUDAdministered Small Cities, and State programs); grants under 24 CFR part 570, subpart G (Urban Development Action Grants), and Loan Guarantees under 24 CFR part 570, subpart M; and assistance to State and local governments under 24 CFR part 92 (HOME program).
Sec. 42.305 Definitions.
The terms Fair Market Rent (FMR), HUD, Section 8, and Uniform Relocation Act (URA) are defined in part 5 of this title. Otherwise, as used in this subpart: Comparable replacement dwelling unit means a dwelling unit that: (1) Meets the criteria of 49 CFR 24.2(d)(1) through (6); and (2) Is available at a monthly cost for rent plus estimated average monthly utility costs that does not exceed the ``Total Tenant Payment'' determined under SEC. 813.107 of this title, after taking into account any
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HCD Act of 1974 means the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et seq.). Lower-income dwelling unit means a dwelling unit with a market rent (including utility costs) that does not exceed the applicable Fair Market Rent (FMR) for existing housing established under 24 CFR part 888. Lower-income person means, as appropriate, a ``low and moderate income person'' as that term is defined in SEC. 570.3 of this title, or a ``low-income family'' as that term is defined in SEC. 92.2 of this title. Recipient means CDBG grantee, UDAG grantee, or the HOME participating jurisdiction. Standard condition and substandard condition suitable for rehabilitation have the meaning the recipient has established for those terms in its HUD-approved consolidated plan pursuant to 24 CFR part 91. In the case of a unit of general local government funded by a State, either the State's definitions for those terms or the definitions adopted by the unit of general local government for this purpose shall apply. Vacant occupiable dwelling unit means a vacant dwelling unit that is in a standard condition; a vacant dwelling unit that is in a substandard condition, but is suitable for rehabilitation; or a dwelling unit in any condition that has been occupied (except by a squatter) at any time within the period beginning 3 months before the date of execution of the agreement by the recipient covering the rehabilitation or demolition.
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following a residential antidisplacement and relocation assistance plan, and that it will minimize displacement of persons as a result of assisted activities. The State may require the unit of general local government to follow the State's plan or permit it to develop its own plan. A unit of general local government that develops its own plan must adopt the plan and make it public. (b) Plan contents. (1) The plan shall indicate the steps that will be taken consistent with other goals and objectives of the program, as provided in parts 92 and 570 of this title, to minimize the displacement of families and individuals from their homes and neighborhoods as a result of any assisted activities. {[[Page 364]]} (2) The plan shall provide for relocation assistance in accordance with SEC. 42.350. (3) The plan shall provide one-for-one replacement units to the extent required by SEC. 42.375.
Sec. 42.350 Relocation assistance for displaced persons.
A displaced person may choose to receive either assistance under the URA and implementing regulations at 49 CFR part 24 or assistance under section 104(d) of the HCD Act of 1974, including: (a) Advisory services. Advisory services at the levels described in 49 CFR part 24. A displaced person must be advised of his or her rights under the Fair Housing Act (42 U.S.C. 3601-19). If the comparable replacement dwelling to be provided to a minority person is located in an area of minority concentration, as defined in the recipient's consolidated plan, if applicable, the minority person must also be given, if possible, referrals to comparable and suitable decent, safe, and sanitary replacement dwellings not located in such areas. (b) Moving expenses. Payment for moving expenses at the levels described in 49 CFR part 24.
Sec. 42.325 Residential antidisplacement and relocation assistance plan.
(a) Certification. (1) As part of its consolidated plan under 24 CFR part 91, the recipient must certify that it has in effect and is following a residential antidisplacement and relocation assistance plan. (2) A unit of general local government receiving funds from the State must certify to the State that it has in effect and is
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in installments, in accordance with 42 U.S.C. 3537c; or (2) If the person purchases an interest in a housing cooperative or mutual housing association and occupies a decent, safe, and sanitary dwelling in the cooperative or association, the person may elect to receive a payment equal to the capitalized value of 60 times the amount that is obtained by subtracting the ``Total Tenant Payment,'' as determined under part 813 of this title, from the monthly rent and estimated average monthly cost of utilities at a comparable replacement dwelling unit. To compute the capitalized value, the installments shall be discounted at the rate of interest paid on passbook savings deposits by a federally insured financial institution conducting business within the recipient's jurisdiction. To the extent necessary to minimize hardship to the household, the recipient shall, subject to appropriate safeguards, issue a payment in advance of the purchase of the interest in the housing cooperative or mutual housing association. {[[Page 365]]}
(c) Security deposits and credit checks. The reasonable and necessary cost of any security deposit required to rent the replacement dwelling unit, and for credit checks required to rent or purchase the replacement dwelling unit. (d) Interim living costs. The recipient shall reimburse a person for actual reasonable out-of-pocket costs incurred in connection with a displacement, including moving expenses and increased housing costs, if: (1) The person must relocate temporarily because continued occupancy of the dwelling unit constitutes a substantial danger to the health or safety of the person or the public; or (2) The person is displaced from a ``lower-income dwelling unit,'' none of the comparable replacement dwelling units to which the person has been referred qualifies as a lower-income dwelling unit, and a suitable lower-income dwelling unit is scheduled to become available in accordance with SEC. 42.375. (e) Replacement housing assistance. Persons are eligible to receive one of the following two forms of replacement housing assistance: (1) Each person must be offered rental assistance equal to 60 times the amount necessary to reduce the monthly rent and estimated average monthly cost of utilities for a replacement dwelling (comparable replacement dwelling or decent, safe, and sanitary replacement dwelling to which the person relocates, whichever costs less) to the ``Total Tenant Payment,'' as determined under part 813 of this title. All or a portion of this assistance may be offered through a certificate or voucher for rental assistance (if available) provided under Section 8. If a Section 8 certificate or voucher is provided to a person, the recipient must provide referrals to comparable replacement dwelling units where the owner is willing to participate in the Section 8 TenantBased Assistance Existing Housing Program (see part 982 of this title). When provided, cash assistance will generally be
Sec. 42.375 One-for-one replacement of lower-income dwelling units.
(a) Units that must be replaced. All occupied and vacant occupiable lowerincome dwelling units that are demolished or converted to a use other than as lowerincome dwelling units in connection with an assisted activity must be replaced with comparable lower-income dwelling units. (b) Acceptable replacement units. Replacement lower-income dwelling units may be provided by any government agency or private developer and must meet the following requirements: (1) The units must be located within the recipient's jurisdiction. To the extent feasible and consistent with other statutory priorities, the units shall be located within the same neighborhood as the units replaced. (2) The units must be sufficient in number and size to house no fewer than the number of occupants who could have been housed in the units that are demolished or
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converted. The number of occupants who could have been housed in units shall be determined in accordance with applicable local housing occupancy codes. The recipient may not replace those units with smaller units (e.g., a 2-bedroom unit with two 1bedroom units), unless the recipient has provided the information required under paragraph (c)(7) of this section. (3) The units must be provided in standard condition. Replacement lowerincome dwelling units may include units that have been raised to standard from substandard condition if: (i) No person was displaced from the unit (see definition of ``displaced person'' in SEC. 42.305); and (ii) The unit was vacant for at least 3 months before execution of the agreement between the recipient and the property owner. (4) The units must initially be made available for occupancy at any time during the period beginning 1 year before the recipient makes public the information required under paragraph (d) of this section and ending 3 years after the commencement of the demolition or rehabilitation related to the conversion. (5) The units must be designed to remain lower-income dwelling units for at least 10 years from the date of initial occupancy. Replacement lower-income dwelling units may include, but are not limited to, public housing or existing housing receiving Section 8 project-based assistance. (c) Preliminary information to be made public. Before the recipient enters into a contract committing it to provide funds under programs covered by this subpart for any activity that will directly result in the demolition of lower-income dwelling units or the conversion of lower-income dwelling units to another use, the recipient must make public, and submit in writing to the HUD field office (or State, in the case of a unit of general local government funded by the State), the following information:
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(1) A description of the proposed assisted activity; (2) The location on a map and number of dwelling units by size (number of bedrooms) that will be demolished or converted to a use other than for lowerincome dwelling units as a direct result of the assisted activity; (3) A time schedule for the commencement and completion of the demolition or conversion; (4) The location on a map and the number of dwelling units by size (number of bedrooms) that will be provided as replacement dwelling units. If such data are not available at the time of the general submission, the submission shall identify the general location on an area map and the approximate number of dwelling units by size, and information identifying the specific location and number of dwelling units by size shall be submitted and disclosed to the public as soon as it is available; (5) The source of funding and a time schedule for the provision of replacement dwelling units; (6) The basis for concluding that each replacement dwelling unit will remain a lower-income dwelling unit for at least 10 years from the date of initial occupancy; and (7) Information demonstrating that any proposed replacement of dwelling units with smaller dwelling units (e.g., a 2-bedroom unit with two 1-bedroom {[[Page 366]]} units) is consistent with the needs assessment contained in its HUDapproved consolidated plan. A unit of general local government funded by the State that is not required to submit a consolidated plan to HUD must make public information demonstrating that the proposed replacement is consistent with the housing needs of lower-income households in the jurisdiction. (d) Replacement not required. (1) In accordance with 42 U.S.C. 5304(d)(3), the one-for-one replacement requirement of this section does not apply to the extent the HUD field office determines, based upon objective data, that there is an adequate supply of vacant lower-income dwelling units in
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standard condition available on a nondiscriminatory basis within the area. (2) The recipient must submit directly to the HUD field office the request for determination that the one-for-one replacement requirement does not apply. Simultaneously with the submission of the request, the recipient must make the submission public and inform interested persons that they have 30 days from the date of submission to provide to HUD additional information supporting or opposing the request. (3) A unit of general local government funded by the State must submit the request for determination under this paragraph to the State. Simultaneously with the submission of the request, the unit of general local government must make the submission public and inform interested persons that they have 30 days from the date of submission to provide to the State additional information supporting or opposing the request. If the State, after considering the submission and the additional data, agrees with the request, the State must provide its recommendation with supporting information to the field office.
Sec. 42.390 Appeals.
A person who disagrees with the recipient's determination concerning whether the person qualifies as a ``displaced person,'' or with the amount of relocation assistance for which the person is eligible, may file a written appeal of that determination with the recipient. A person who is dissatisfied with the recipient's determination on his or her appeal may submit a written request for review of that determination to the HUD field office (or to the State in the case of a unit of general local government funded by the State). If the full relief is not granted, the recipient shall advise the person of his or her right to seek judicial review.
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24 CFR 50 Protection And Enhancement Of Environmental Quality
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 366-375] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 50_PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY Subpart A_General: Federal Laws and Authorities 50.1 Purpose, authority, and applicability. 50.2 Terms and abbreviations. 50.3 Environmental policy. 50.4 Related Federal laws and authorities. Subpart B_General Policy: Responsibilities and Program Coverage 50.10 Basic environmental responsibility. 50.11 Responsibility of the HUD approving official. Subpart C_General Policy: Decision Points 50.16 Decision points for policy actions. 50.17 Decision points for projects. Subpart D_General Policy: Environmental Review Procedures 50.18 General. 50.19 Categorical exclusions not subject to the Federal laws and authorities cited in SEC. 50.4. 50.20 Categorical exclusions subject to the Federal laws and authorities cited in SEC. 50.4. 50.21 Aggregation.
50.22 Environmental management and monitoring. 50.23 Public participation. 50.24 HUD review of another agency's EIS. Subpart E_Environmental Assessments and Related Reviews 50.31 The EA. 50.32 Responsibility for environmental processing. 50.33 Action resulting from the assessment. 50.34 Time delays for exceptional circumstances. 50.35 Use of prior environmental assessments. 50.36 Updating of environmental reviews. {[[Page 367]]} Subpart F_Environmental Impact Statements 50.41 EIS policy. 50.42 Cases when an EIS is required. 50.43 Emergencies. Authority: 42 U.S.C. 3535(d) and 4332; and Executive Order 11991, 3 CFR, 1977 Comp., p. 123. Source: 61 FR 50916, Sept. 27, 1996, unless otherwise noted.
Subpart A_General: Federal Laws and Authorities
Sec. 50.1 Purpose, authority, and applicability.
(a) This part implements the policies of the National Environmental Policy Act (NEPA) and other environmental requirements (as specified in SEC. 50.4). (b) NEPA (42 U.S.C. 4321 et seq.), establishes national policy, goals and procedures for protecting, restoring and enhancing environmental quality. NEPA is implemented by Executive Order 11514 of March 5, 1970, (3 CFR, 1966--1970 Comp., p. 902) as amended by Executive Order 11991 of May 24, 1977, (3 CFR, 1977 Comp., p. 123) and by the Council on
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approval decision for any proposed policy or project subject to this part. Project means an activity, or a group of integrally-related activities, undertaken directly by HUD or proposed for HUD assistance or insurance. (b) The following abbreviations are used throughout this part: AS/CPD--Assistant Secretary for Community Planning and Development. CEQ--Council on Environmental Quality EA--Environmental Assessment EIS--Environmental Impact Statement FONSI--Finding of No Significant Impact HUD--Department of Housing and Urban Development NEPA--National Environmental Policy Act NOI/EIS--Notice of Intent to Prepare an Environmental Impact Statement
Environmental Quality (CEQ) Regulations, 40 CFR parts 15001508. (c) The regulations issued by CEQ at 40 CFR parts 1500-1508 establish the basic procedural requirements for compliance with NEPA. These procedures are to be followed by all Federal agencies and are incorporated by reference into this part. This part, therefore, provides supplemental instructions to reflect the particular nature of HUD programs, and is to be used in tandem with 40 CFR parts 1500-1508 and regulations that implement authorities cited at SEC. 50.4. (d) These regulations apply to all HUD policy actions (as defined in SEC. 50.16), and to all HUD project actions (see SEC. 50.2(a)(2)). Also, they apply to projects and activities carried out by recipients subject to environmental policy and procedures of 24 CFR part 58, when the recipient that is regulated under 24 CFR part 58 claims the lack of legal capacity to assume the Secretary's environmental review responsibilities and the claim is approved by HUD or when HUD determines to conduct an environmental review itself in place of a nonrecipient responsible entity. For programs, activities or actions not specifically identified or when there are questions regarding the applicability of this part, the Assistant Secretary for Community Planning and Development shall be consulted.
Sec. 50.3 Environmental policy.
(a) It is the policy of the Department to reject proposals which have significant adverse environmental impacts and to encourage the modification of projects in order to enhance environmental quality and minimize environmental harm. (b) The HUD approving official shall consider environmental and other Departmental objectives in the decisionmaking process. {[[Page 368]]} (c) When EA's or EIS's or reviews under SEC. 50.4 reveal conditions or safeguards that should be implemented once a proposal is approved in order to protect and enhance environmental quality or minimize adverse environmental impacts, such conditions or safeguards must be included in agreements or other relevant documents. (d) A systematic, interdisciplinary approach shall be used to assure the integrated use of the natural and social sciences and the environmental design arts in making decisions.
Sec. 50.2 Terms and abbreviations.
(a) The definitions for most of the key terms or phrases contained in this part appear in 40 CFR part 1508 and in the authorities cited in SEC. 50.4. The following definitions also apply to this part: Environmental review means a process for complying with NEPA (through an EA or EIS) and/or with the laws and authorities cited in SEC. 50.4. HUD approving official means the HUD official authorized to make the
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(e) Environmental impacts shall be evaluated on as comprehensive a scale as is practicable. (f) HUD offices shall begin the environmental review process at the earliest possible time so that potential conflicts between program procedures and environmental requirements are identified at an early stage. (g) Applicants for HUD assistance shall be advised of environmental requirements and consultation with governmental agencies and individuals shall take place at the earliest time feasible. (h) For HUD grant programs in which the funding approval for an applicant's program must occur before the applicant's selection of properties, the application shall contain an assurance that the applicant agrees to assist HUD to comply with this part and that the applicant shall: (1) Supply HUD with all available, relevant information necessary for HUD to perform for each property any environmental review required by this part; (2) Carry out mitigating measures required by HUD or select alternate eligible property; and (3) Not acquire, rehabilitate, convert, lease, repair or construct property, nor commit or expend HUD or local funds for these program activities with respect to any eligible property, until HUD approval of the property is received. (i)(1) It is HUD policy that all property proposed for use in HUD programs be free of hazardous materials, contamination, toxic chemicals and gasses, and radioactive substances, where a hazard could affect the health and safety of occupants or conflict with the intended utilization of the property. (2) HUD environmental review of multifamily and non-residential properties shall include evaluation of previous uses of the site and other evidence of contamination on or near the site, to assure that occupants of proposed sites are not adversely affected by the hazards listed in paragraph (i)(1) of this section. (3) Particular attention should be given to any proposed site on or in the general
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proximity of such areas as dumps, landfills, industrial sites or other locations that contain hazardous wastes. (4) HUD shall require the use of current techniques by qualified professionals to undertake investigations determined necessary.
Sec. 50.4 Related Federal laws and authorities.
HUD and/or applicants must comply, where applicable, with all environmental requirements, guidelines and statutory obligations under the following authorities and HUD standards: (a) Historic properties. (1) The National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.), as amended. (2) Executive Order 11593, Protection and Enhancement of the Cultural Environment, May 13, 1971 (3 CFR, 1971-1975 Comp., p. 559). (3) The Archaeological and Historic Preservation Act of 1974, which amends the Reservoir Salvage Act of 1960 (16 U.S.C. 469 et seq.). (4) Procedures for the Protection of Historic and Cultural Properties (Advisory Council on Historic Preservation--36 CFR part 800). (b) Flood insurance, floodplain management and wetland protection. (1) Flood Disaster Protection Act of 1973 (42 U.S.C. 4001-4128) and the National Flood Insurance Reform Act of 1994 (Pub.L. 103325, 108 Stat. 2160). (2) HUD Procedure for the Implementation of Executive Order 11988 (3 CFR, 1977 Comp., p. 117)--24 CFR part 55, Floodplain Management. (3) Executive Order 11990 (Protection of Wetlands), (3 CFR, 1977 Comp., p. 121). {[[Page 369]]} (c) Coastal areas protection and management. (1) The Coastal Barrier Resources Act, as amended by the Coastal Barrier Improvement Act of 1990 (16 U.S.C. 3501 et seq.).
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(2) The Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.), as amended. (d) Sole source aquifers. The Safe Drinking Water Act of 1974 (42 U.S.C. 201, 300 et seq., and 21 U.S.C. 349), as amended. (See 40 CFR part 149.) (e) Endangered species. The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), as amended. (See 50 CFR part 402.) (f) Wild and scenic rivers. The Wild and Scenic Rivers Act (16 U.S.C 1271 et seq.), as amended. (g) Water quality. The Federal Water Pollution Control Act, as amended by the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1251 et seq.), and later enactments. (h) Air quality. The Clean Air Act (42 U.S.C. 7401 et seq.), as amended. (See 40 CFR parts 6, 51, and 93.) (i) Solid waste management. (1) The Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), and later enactments. (2) The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), as amended. (j) Farmlands protection. The Farmland Protection Policy Act of 1981 (7 U.S.C. 4201 et seq.), as amended. (See 7 CFR part 658.) (k) HUD environmental standards. Applicable criteria and standards specified in HUD environmental regulations (24 CFR part 51). (l) Environmental justice. Executive Order 12898--Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (3 CFR, 1994 Comp., p. 859).
Subpart B_General Policy: Responsibilities and Program Coverage
Sec. 50.10 Basic environmental responsibility.
(a) It is the responsibility of all Assistant Secretaries, the General Counsel, and the HUD approving official to assure that the requirements of this part are implemented. (b) The Assistant Secretary for Community Planning and Development (A/S CPD), represented by the Office of Community Viability, whose Director shall serve as the Departmental Environmental Clearance Officer (DECO), is assigned the overall Departmental responsibility for environmental policies and procedures for compliance with NEPA and the related laws and authorities. To the extent permitted by applicable laws and the CEQ regulations, the A/S CPD shall approve waivers and exceptions or establish criteria for exceptions from the requirements of this part.
Sec. 50.11 Responsibility of the HUD approving official.
(a) The HUD approving official shall make an independent evaluation of the environmental issues, take responsibility for the scope and content of the compliance finding, EA or EIS, and make the environmental finding, where applicable. (Also, see SEC. 50.32.) (b) Copies of environmental reviews and findings shall be maintained in the project file for projects, in the rules docket files for Federal Register publications, and in program files for non-Federal Register policy documents.
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Subpart C_General Policy: Decision Points
Sec. 50.16 Decision points for policy actions.
Either an EA and FONSI or an EIS on all policy actions not meeting the criteria of SEC. 50.19 shall be completed prior to the approval action. Policy actions include all proposed Federal Register policy documents and other policy-related Federal actions (40 CFR 1508.18). The decision as to whether a proposed policy action is categorically excluded from an EA shall be made by the Program Environmental Clearance Officer (PECO) in Headquarters as early as possible. Where the PECO has any doubt as to whether a proposed action qualifies for exclusion, the PECO shall request a determination by the AS/CPD. The EA and FONSI may be combined into a single document. {[[Page 370]]}
Sec. 50.17 Decision points for projects.
Either an EA and FONSI or an EIS for individual projects shall be completed before the applicable program decision points below for projects not meeting the criteria of SEC. 50.20. Compliance with applicable authorities cited in SEC. 50.4 shall be completed before the applicable program decision points below unless the project meets the criteria for exclusion under SEC. 50.19. (a) New Construction. (1) Project mortgage insurance or other financial assistance for multifamily housing projects (including sections 202 and 811), nursing homes, hospitals, group practice facilities and manufactured home parks: Issuance of Site Appraisal and Market Analysis (SAMA) Letter or initial equivalent indication of HUD approval of a specific site; (2) Public Housing: HUD approval of the proposal. (3) Loan Guarantee Recovery Fund Program (24 CFR part 573). HUD issuance
of a letter of commitment or initial equivalent indication of HUD approval. (b) Rehabilitation projects. Use the decision points under ``new construction'' for HUD programs cited in paragraph (a) of this section; otherwise the decision point is the HUD project approval. (c) Public housing modernization programs. HUD approval of the modernization grants. (d) Property Disposition. Multifamily structures, college housing, nursing homes, manufactured homes and parks, group practice facilities, vacant land and one to four family structures: HUD approval of the Disposition Program. (e) HUD programs subject to 24 CFR part 58. For cases in which HUD exercises environmental responsibility under this part where a recipient lacks legal capacity to do so or HUD determines to do so in place of a nonrecipient responsible entity under 24 CFR part 58 (see SEC. 50.1(d)), the decision point is: HUD's execution of an agreement or contract, whichever comes first, or in the case of Section 8 ProjectBased Certificate Assistance and Moderate Rehabilitation, HUD notification to the Public Housing Agency to proceed with execution of an Agreement to Enter into Housing Assistance Payments (HAP) Contract. (f) Section 50.3(h). Notwithstanding the other paragraphs of this section, the decision point for grant programs in which HUD approval of funding for an applicant's program must occur before the applicant's selection of properties for use in its program is: HUD approval of specific properties. (g) Stewart B. McKinney Homeless Assistance Act Programs. Where the recipients are nonprofit organizations or governmental entities with special or limited purpose powers, the decision point is: HUD project approval. (h) Programs not specifically covered in this section. Consult with the AS/CPD for decision points.
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(5) Inspections and testing of properties for hazards or defects. (6) Purchase of insurance. (7) Purchase of tools. (8) Engineering or design costs. (9) Technical assistance and training. (10) Assistance for temporary or permanent improvements that do not alter environmental conditions and are limited to protection, repair or restoration activities necessary only to control or arrest the effects from disasters or imminent threats to public safety including those resulting from physical deterioration. (11) Tenant-based rental assistance. (12) Supportive services including, but not limited to, health care, housing services, permanent housing placement, day care, nutritional services, short-term payments for rent/mortgage/utility costs, and assistance in gaining access to local, State, and Federal government benefits and services. (13) Operating costs including maintenance, security, operation, utilities, furnishings, equipment, supplies, staff training and recruitment and other incidental costs; however, in the case of equipment, compliance with SEC. 50.4(b)(1) is required. (14) Economic development activities, including but not limited to, equipment purchase, inventory financing, interest subsidy, operating expenses and similar costs not associated with construction or physical expansion of existing facilities; however, in the case of equipment purchase, compliance with SEC. 50.4(b)(1) is required. (15) Activities to assist homebuyers to purchase existing dwelling units or dwelling units under construction, including closing costs and downpayment assistance, interest buydowns, and similar activities that result in the transfer of title. (16) Housing pre-development costs including legal, consulting, developer and other costs related to site options, project financing, administrative costs and fees for loan commitments, zoning approvals, and other related activities which do not have a physical impact.
Subpart D_General Policy: Environmental Review Procedures
Sec. 50.18 General.
HUD may, from time to time, complete programmatic reviews that further avoid the necessity of complying with the laws and authorities in SEC. 50.4 on a property-byproperty basis.
Sec. 50.19 Categorical exclusions not subject to the Federal laws and authorities cited in SEC. 50.4.
(a) General. The activities and related approvals of policy documents listed in paragraphs (b) and (c) of this section are not subject to the individual compliance requirements of the Federal laws and authorities cited in SEC. 50.4, unless otherwise indicated below. These activities and approvals of policy documents are also categorically excluded from the EA required by NEPA except in extraordinary circumstances (SEC. 50.20(b)). HUD approval or implementation of these categories of activities and policy documents does not require environmental review, because they do not alter physical conditions in a manner or to an extent that would require review under NEPA or the other laws and authorities cited at SEC. 50.4. (b) Activities. (1) Environmental and other studies, resource identification and the development of plans and strategies. (2) Information and financial advisory services. (3) Administrative and management expenses. {[[Page 371]]} (4) Public services that will not have a physical impact or result in any physical changes, including but not limited to services concerned with employment, crime prevention, child care, health, drug abuse, education, counseling, energy conservation and welfare or recreational needs.
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(17) HUD's insurance of one-to-four family mortgages under the Direct Endorsement program, the insurance of oneto-four family mortgages under the Lender Insurance program, and HUD's guarantee of loans for one-to-four family dwellings under the Direct Guarantee procedure for the Indian Housing loan guarantee program, without any HUD review or approval before the completion of construction or rehabilitation and the loan closing; and HUD's acceptance for insurance of loans insured under Title I of the National Housing Act; however, compliance with SEC. Sec. 50.4(b)(1) and (c)(1) and 24 CFR 51.303(a)(3) is required. (18) HUD's endorsement of one-to-four family mortgage insurance for proposed construction under Improved Area processing; however, the Appraiser/Review Appraiser Checksheet (Form HUD-54891) must be completed. (19) Activities of the Government National Mortgage Association under Title III of the National Housing Act (12 U.S.C. 1716 et seq.). (20) Activities under the Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701 et seq.). (21) Refinancing of HUD-insured mortgages that will not allow new construction or rehabilitation, nor result in any physical impacts or changes except for routine maintenance; however, compliance with SEC. 50.4(b)(1) is required. (22) Approval of the sale of a HUDheld mortgage. (23) Approval of the foreclosure sale of a property with a HUD-held mortgage; however, appropriate restrictions will be imposed to protect historic properties. (24) HUD guarantees under the Loan Guarantee Recovery Fund Program (24 CFR part 573) of loans that refinance existing loans and mortgages, where any new construction or rehabilitation financed by the existing loan or mortgage has been completed prior to the filing of an application under the program, and the refinancing will not allow further construction or rehabilitation, nor result in
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any physical impacts or changes except for routine maintenance; however, compliance {[[Page 372]]} with SEC. Sec. 50.4 (b)(1) and (c)(1) and 51.303(a) is required. (c) Approval of policy documents. (1) Approval of rules and notices proposed for publication in the Federal Register or other policy documents that do not: (i) Direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing (other than tenant-based rental assistance), rehabilitation, alteration, demolition, or new construction; or (ii) Establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. (2) Approval of policy documents that amend an existing document where the existing document as a whole would not fall within an exclusion in this paragraph (c) but the amendment by itself would do so; (3) Approval of policy documents that set out fair housing or nondiscrimination standards or enforcement procedures or provide for assistance in promoting or enforcing fair housing or nondiscrimination; (4) Approval of handbooks, notices and other documents that provide operating instructions and procedures in connection with activities under a Federal Register document that has previously been subject to a required environmental review. (5) Approval of a Notice of Funding Availability (NOFA) that provides funding under, and does not alter any environmental requirements of, a regulation or program guideline that was previously published in the Federal Register, provided that (i) The NOFA specifically refers to the environmental review provisions of the regulation or guideline; or (ii) The regulation or guideline contains no environmental review provisions because it concerns only activities listed in paragraph (b) of this section. (6) Statutorily required and/or discretionary establishment and review of interest rates, loan limits, building cost
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(ii) In the case of multifamily residential buildings: (A) Unit density is not changed more than 20 percent; (B) The project does not involve changes in land use from residential to nonresidential; and (C) The estimated cost of rehabilitation is less than 75 percent of the total estimated cost of replacement after rehabilitation. (iii) In the case of non-residential structures, including commercial, industrial, and public buildings: {[[Page 373]]} (A) The facilities and improvements are in place and will not be changed in size nor capacity by more than 20 percent; and (B) The activity does not involve a change in land use, such as from nonresidential to residential, commercial to industrial, or from one industrial use to another. (3)(i) An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four oneunit buildings or one four-unit building or any combination in between; or (ii) An individual action on a project of five or more housing units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site. (iii) Paragraphs (a)(3)(i) and (ii) of this section do not apply to rehabilitation of a building for residential use (with one to four units) (see paragraph (a)(2)(i) of this section). (4) Acquisition (including leasing) or disposition of, or equity loans on an existing structure, or acquisition (including leasing) of vacant land provided that the structure or land acquired, financed, or disposed of will be retained for the same use. (5) Purchased or refinanced housing and medical facilities under section 223(f) of the National Housing Act (12 U.S.C. 1715n). (6) Mortgage prepayments or plans of action (including incentives) under 24 CFR part 248.
limits, prototype costs, fair market rent schedules, HUD-determined prevailing wage rates, income limits and exclusions with regard to eligibility for or calculation of HUD housing assistance or rental assistance, and similar rate and cost determinations and related external administrative or fiscal requirements or procedures which do not constitute a development decision that affects the physical condition of specific project areas or building sites. [61 FR 50916, Sept. 27, 1996, as amended at 62 FR 15802, Apr. 2, 1997; 63 FR 48990, Sept. 11, 1998; 68 FR 56127, Sept. 29, 2003]
Sec. 50.20 Categorical exclusions subject to the Federal laws and authorities cited in SEC. 50.4.
(a) The following actions, activities and programs are categorically excluded from the NEPA requirements of this part. They are not excluded from individual compliance requirements of other environmental statutes, Executive orders and HUD standards cited in SEC. 50.4, where appropriate. Form HUD-4128 shall be used to document compliance. Where the responsible official determines that any item identified below may have an environmental effect because of extraordinary circumstances (40 CFR 1508.4), the requirements of NEPA shall apply (see paragraph (b) of this section). (1) Special projects directed to the removal of material and architectural barriers that restrict the mobility of and accessibility to elderly and persons with disabilities. (2) Rehabilitation of buildings and improvements when the following conditions are met: (i) In the case of a building for residential use (with one to four units), the density is not increased beyond four units, the land use is not changed, and the footprint of the building is not increased in a floodplain or in a wetland;
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(b) For categorical exclusions having the potential for significant impact because of extraordinary circumstances, HUD must prepare an EA in accordance with subpart E. If it is evident without preparing an EA that an EIS is required pursuant to SEC. 50.42, HUD should proceed directly to the preparation of an EIS in accordance with subpart F. [61 FR 50916, Sept. 27, 1996, as amended at 68 FR 56127, Sept. 29, 2003]
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Sec. 50.21 Aggregation.
Activities which are geographically related and are logical parts of a composite of contemplated HUD projects shall be evaluated together.
Sec. 50.22 Environmental management and monitoring.
An Environmental Management and Monitoring Program shall be established prior to project approval when it is deemed necessary by the HUD approving official. The program shall be part of the approval document and must: (a) Be concurred in by the Field Environmental Clearance Officer (FECO) (in the absence of a FECO, by the Program Environmental Clearance Officer in Headquarters) and any cooperating agencies; (b) Contain specific standards, safeguards and commitments to be completed during project implementation; (c) Identify the staff who will be responsible for the post-approval inspection; and (d) Specify the time periods for conducting the evaluation and monitoring the applicant's compliance with the project agreements.
FONSI will be available in the project file. The local HUD field office may be contacted by persons who wish to review the FONSI. In all cases, HUD shall mail notices to those who have requested them. Additional efforts for involving the public in specific notice or compliance requirements shall be made in accord with the implementing procedures of the laws and authorities cited in SEC. 50.4. Notices pertaining to an EIS or an amendment to an EIS or a FONSI subject to SEC. 50.34 shall be given to the public in accordance with paragraphs (a) through (d) of this section. (a) A NOI/EIS shall be forwarded to the AS/CPD to the attention of the Departmental Environmental Clearance Officer for publication in the Federal Register. (b) Notices will be bilingual if the affected public includes a significant portion of non-English speaking persons and will identify a date when the official public involvement element of the {[[Page 374]]} proposed action is to be completed and HUD internal processing is to continue. (c) All required notices shall be published in an appropriate local printed news medium, and sent to individuals and groups known to be interested in the proposed action. (d) All notices shall inform the public where additional information may be obtained.
Sec. 50.24 HUD review of another agency's EIS.
Where another agency's EIS is referred to the HUD Field Office in whose jurisdiction the project is located, the Field Environmental Clearance Officer shall determine whether HUD has an interest in the EIS and, if so, will review and comment. Any EIS received from another Federal agency requesting comment on legislative proposals, regulations, or other policy documents shall be sent to the AS/CPD for comment, and the AS/CPD shall provide the General Counsel the opportunity for comment.
Sec. 50.23 Public participation.
HUD shall inform the affected public about NEPA-related hearings, public meetings, and the availability of environmental documents (see 40 CFR 1506.6(b)) in accordance with this section. Where project actions result in a FONSI, the
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Subpart E_Environmental Assessments and Related Reviews
Sec. 50.31 The EA.
(a) Form HUD-4128--Environmental Assessment and Compliance Findings for the Related Laws--is the EA form to be used for analysis and documentation by HUD for projects and activities under subpart E. The Departmental Environmental Clearance Officer shall approve the issuance of equivalent formats, if Form HUD-4128 does not meet specific program needs. (b) The program representative shall obtain interdisciplinary assistance from professional experts and other HUD staff as needed. Additional information may also be requested of the sponsor/applicant. HUD is responsible for assessing and documenting the extent of the environmental impact.
Sec. 50.33 Action resulting from the assessment.
(a) A proposal may be accepted without modifications if the EA indicates that the proposal will not significantly (see 40 CFR 1508.27) affect the quality of the human environment and a FONSI is prepared. (b) A proposal may be accepted with modifications provided that: (1) Changes have been made that would reduce adverse environmental impact to acceptable and insignificant levels; and (2) An Environmental Management and Monitoring Program is developed in accordance with SEC. 50.22 when it is deemed necessary by the HUD approving official. (c) A proposal should be rejected if significant and unavoidable adverse environmental impacts would still exist after modifications have been made to the proposal and an EIS is not prepared. (d) A proposal (if not rejected) shall require an EIS if the EA indicates that significant environmental impacts would result.
Sec. 50.32 Responsibility for environmental processing.
The program staff in the HUD office responsible for processing the project application or recommending a policy action is responsible for conducting the compliance finding, EA, or EIS. The collection of data and studies as part of the information contained in the environmental review may be done by an applicant or the applicant's contractor. The HUD program staff may use any information supplied by the applicant or contractor, provided HUD independently evaluates the information, will be responsible for its accuracy, supplements the information, if necessary, to conform to the requirements of this part, and prepares the environmental finding. Assessments for projects over 200 lots/dwelling units or beds shall be sent to the Field Environmental Clearance Officer (FECO) or, in the absence of a FECO, to the Program Environmental Clearance Officer in Headquarters for review and comment.
Sec. 50.34 Time delays for exceptional circumstances.
(a) Under the circumstances described in this section, the FONSI must be made available for public review for 30 calendar days before a final decision is made whether to prepare an EIS and before the HUD action is taken. The circumstances are: {[[Page 375]]} (1) When the proposed action is, or is closely similar to, one which normally requires the preparation of an EIS pursuant to SEC. 50.42(b) but it is determined, as a result of an EA or in the course of preparation of a draft EIS, that the proposed action will not have a significant impact on the human environment; or (2) When the nature of the proposed action is without precedent and does not appear to require more than an assessment. (b) In such cases, the FONSI must be concurred in by the AS/CPD and the Program Environmental Clearance Officer.
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Notice of the availability of the FONSI shall be given to the public in accordance with paragraphs (a) through (d) of SEC. 50.23.
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Sec. 50.35 Use of prior environmental assessments.
When other Federal, State, or local agencies have prepared an EA or other environmental analysis for a proposed HUD project, these documents should be requested and used to the extent possible. HUD must, however, conduct the environmental analysis and prepare the EA and be responsible for the required environmental finding.
Sec. 50.36 Updating of environmental reviews.
The environmental review must be reevaluated and updated when the basis for the original environmental or compliance findings is affected by a major change requiring HUD approval in the nature, magnitude or extent of a project and the project is not yet complete. A change only in the amount of financing or mortgage insurance involved does not normally require the environmental review to be reevaluated or updated.
(1) Would provide a site or sites for hospitals or nursing homes containing a total of 2,500 or more beds; or (2) Would remove, demolish, convert, or substantially rehabilitate 2,500 or more existing housing units (but not including rehabilitation projects categorically excluded under SEC. 50.20), or which would result in the construction or installation of 2,500 or more housing units, or which would provide sites for 2,500 or more housing units. (c) When the environmental concerns of one or more Federal authorities cited in SEC. 50.4 will be affected by the proposal, the cumulative impact of all such effects should be assessed to determine whether an EIS is required. Where all of the affected authorities provide alternative procedures for resolution, those procedures should be used in lieu of an EIS.
Sec. 50.43 Emergencies.
In cases of national emergency and disasters or cases of imminent threat to health and safety or other emergency which require the taking of an action with significant environmental impact, the provisions of 40 CFR 1506.11 and of any applicable SEC. 50.4 authorities which provide for emergencies shall apply.
Subpart F_Environmental Impact Statements
Sec. 50.41 EIS policy.
EIS's will be prepared and considered in program determinations pursuant to the general environmental policy stated in SEC. 50.3 and 40 CFR 1505.2 (b) and (c).
Sec. 50.42 Cases when an EIS is required.
(a) An EIS is required if the proposal is determined to have a significant impact on the human environment pursuant to subpart E. (b) An EIS will normally be required if the proposal:
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51.208 Reservation of administrative and legal rights.
24 CFR 51 Environmental Criteria And Standards
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 375-393] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 51_ENVIRONMENTAL CRITERIA AND STANDARDS Subpart A_General Provisions 51.1 Purpose. 51.2 Authority. 51.3 Responsibilities. 51.4 Program coverage. Subpart B_Noise Abatement and Control 51.100 Purpose and authority. 51.101 General policy. 51.102 Responsibilities. 51.103 Criteria and standards. 51.104 Special requirements. 51.105 Exceptions. 51.106 Implementation. {[[Page 376]]} Appendix I to Subpart B to Part 51-Definition of Acoustical Quantities Subpart C_Siting of HUD-Assisted Projects Near Hazardous Operations Handling Conventional Fuels or Chemicals of an Explosive or Flammable Nature 51.200 Purpose. 51.201 Definitions. 51.202 Approval of HUD-assisted projects. 51.203 Safety standards. 51.204 HUD-assisted hazardous facilities. 51.205 Mitigating measures. 51.206 Implementation. 51.207 Special circumstances.
Appendix I to Subpart C to Part 51-Specific Hazardous Substances Appendix II to Subpart C to Part 51-Development of Standards; Calculation Methods Subpart D_Siting of HUD Assisted Projects in Runway Clear Zones at Civil Airports and Clear Zones and Accident Potential Zones at Military Airfields 51.300 Purpose. 51.301 Definitions. 51.302 Coverage. 51.303 General policy. 51.304 Responsibilities. 51.305 Implementation. Authority: 42 U.S.C. 3535(d), unless otherwise noted. Source: 44 FR 40861, July 12, 1979, unless otherwise noted.
Subpart A_General Provisions
Sec. 51.1 Purpose.
The Department of Housing and Urban Development is providing program Assistant Secretaries and administrators and field offices with environmental standards, criteria and guidelines for determining project acceptability and necessary mitigating measures to insure that activities assisted by the Department achieve the goal of a suitable living environment.
Sec. 51.2 Authority.
This part implements the Department's responsibilities under: The National Housing Act (12 U.S.C. 1701 et seq.); SEC. 2 of the Housing Act of 1949 (42 U.S.C. 1441); secs. 2 and 7(d) of the Department of Housing and Urban Development Act (42 U.S.C. 3531 and 3535(d)); the National Environmental Policy Act of 1969 (42
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U.S.C. 4321); and the other statutes that are referred to in this part. [61 FR 13333, Mar. 26, 1996]
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Sec. 51.3 Responsibilities.
The Assistant Secretary for Community Planning and Development is responsible for administering HUD's environmental criteria and standards as set forth in this part. The Assistant Secretary for Community Planning and Development may be assisted by HUD officials in implementing the responsibilities established by this part. HUD will identify these HUD officials and their specific responsibilities through Federal Register notice. [61 FR 13333, Mar. 26, 1996]
the Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.); and the General Services Administration, Federal Management Circular 75-2; {[[Page 377]]} Compatible Land Uses at Federal Airfields. [44 FR 40861, July 12, 1979, as amended at 61 FR 13333, Mar. 26, 1996]
Sec. 51.101 General policy.
(a) It is HUD's general policy to provide minimum national standards applicable to HUD programs to protect citizens against excessive noise in their communities and places of residence. (1) Planning assistance. HUD requires that grantees give adequate consideration to noise exposures and sources of noise as an integral part of the urban environment when HUD assistance is provided for planning purposes, as follows: (i) Particular emphasis shall be placed on the importance of compatible land use planning in relation to airports, highways and other sources of high noise. (ii) Applicants shall take into consideration HUD environmental standards impacting the use of land. (2) Activities subject to 24 CFR part 58. (i) Responsible entities under 24 CFR part 58 must take into consideration the noise criteria and standards in the environmental review process and consider ameliorative actions when noise sensitive land development is proposed in noise exposed areas. Responsible entities shall address deviations from the standards in their environmental reviews as required in 24 CFR part 58. (ii) Where activities are planned in a noisy area, and HUD assistance is contemplated later for housing and/or other noise sensitive activities, the responsible entity risks denial of the HUD assistance unless the HUD standards are met. (3) HUD support for new construction. HUD assistance for the construction of new noise sensitive uses is prohibited generally for projects with unacceptable noise exposures and is discouraged for projects
Sec. 51.4 Program coverage.
Environmental standards shall apply to all HUD actions except where special provisions and exemptions are contained in each subpart.
Subpart B_Noise Abatement and Control
Sec. 51.100 Purpose and authority.
(a) It is the purpose of this subpart B to: (1) Call attention to the threat of noise pollution; (2) Encourage the control of noise at its source in cooperation with other Federal departments and agencies; (3) Encourage land use patterns for housing and other noise sensitive urban needs that will provide a suitable separation between them and major noise sources; (4) Generally prohibit HUD support for new construction of noise sensitive uses on sites having unacceptable noise exposure; (5) Provide policy on the use of structural and other noise attenuation measures where needed; and (6) Provide policy to guide implementation of various HUD programs. (b) Authority. Specific authorities for noise abatement and control are contained in
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knowledge of noise abatement and control to public and private bodies, to develop improved methods for anticipating noise encroachment, to develop noise abatement measures through land use and building construction practices, and to foster better understanding of the consequences of noise. It shall be HUD's policy to issue guidance documents periodically to assist HUD personnel in assigning an acceptability category to projects in accordance with noise exposure standards, in evaluating noise attenuation measures, {[[Page 378]]} and in advising local agencies about noise abatement strategies. The guidance documents shall be updated periodically in accordance with advances in the state-ofthe-art. (7) Construction equipment, building equipment and appliances. HUD shall encourage the use of quieter construction equipment and methods in population centers, the use of quieter equipment and appliances in buildings, and the use of appropriate noise abatement techniques in the design of residential structures with potential noise problems. (8) Exterior noise goals. It is a HUD goal that exterior noise levels do not exceed a day-night average sound level of 55 decibels. This level is recommended by the Environmental Protection Agency as a goal for outdoors in residential areas. The levels recommended by EPA are not standards and do not take into account cost or feasibility. For the purposes of this regulation and to meet other program objectives, sites with a day-night average sound level of 65 and below are acceptable and are allowable (see Standards in SEC. 51.103(c)). (9) Interior noise goals. It is a HUD goal that the interior auditory environment shall not exceed a day-night average sound level of 45 decibels. Attenuation measures to meet these interior goals shall be employed where feasible. Emphasis shall be given to noise sensitive interior spaces such as bedrooms. Minimum attenuation requirements are prescribed in SEC. 51.104(a).
with normally unacceptable noise exposure. (Standards of acceptability are contained in SEC. 51.103(c).) This policy applies to all HUD programs providing assistance, subsidy or insurance for housing, manufactured home parks, nursing homes, hospitals, and all programs providing assistance or insurance for land development, redevelopment or any other provision of facilities and services which are directed to making land available for housing or noise sensitive development. The policy does not apply to research demonstration projects which do not result in new construction or reconstruction, flood insurance, interstate land sales registration, or any action or emergency assistance under disaster assistance provisions or appropriations which are provided to save lives, protect property, protect public health and safety, remove debris and wreckage, or assistance that has the effect of restoring facilities substantially as they existed prior to the disaster. (4) HUD support for existing construction. Noise exposure by itself will not result in the denial of HUD support for the resale and purchase of otherwise acceptable existing buildings. However, environmental noise is a marketability factor which HUD will consider in determining the amount of insurance or other assistance that may be given. (5) HUD support of modernization and rehabilitation. For modernization projects located in all noise exposed areas, HUD shall encourage noise attenuation features in alterations. For major or substantial rehabilitation projects in the Normally Unacceptable and Unacceptable noise zones, HUD actively shall seek to have project sponsors incorporate noise attenuation features, given the extent and nature of the rehabilitation being undertaken and the level or exterior noise exposure. In Unacceptable noise zones, HUD shall strongly encourage conversion of noise-exposed sites to land uses compatible with the high noise levels. (6) Research, guidance and publications. HUD shall maintain a continuing program designed to provide new
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(10) Acoustical privacy in multifamily buildings. HUD shall require the use of building design and acoustical treatment to afford acoustical privacy in multifamily buildings pursuant to requirements of the Minimum Property Standards. [44 FR 40861, July 12, 1979, as amended at 50 FR 9268, Mar. 7, 1985; 61 FR 13333, Mar. 26, 1996]
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Sec. 51.103 Criteria and standards.
These standards apply to all programs as indicated in SEC. 51.101. (a) Measure of external noise environments. The magnitude of the external noise environment at a site is determined by the value of the day-night average sound level produced as the result of the accumulation of noise from all sources contributing to the external noise environment at the site. Day-night average sound level, abbreviated as DNL and symbolized as Ldn, is the 24hour average sound level, in decibels, obtained after addition of 10 decibels to sound levels in the night from 10 p.m. to 7 a.m. Mathematical expressions for average sound level and day-night average sound level are stated in the Appendix I to this subpart. (b) Loud impulsive sounds. On an interim basis, when loud impulsive sounds, such as explosions or sonic booms, are experienced at a site, the {[[Page 379]]} day-night average sound level produced by the loud impulsive sounds alone shall have 8 decibels added to it in assessing the acceptability of the site (see Appendix I to this subpart). Alternatively, the Cweighted day-night average sound level (LCdn) may be used without the 8 decibel addition, as indicated in SEC. 51.106(a)(3). Methods for assessing the contribution of loud impulsive sounds to daynight average sound level at a site and mathematical expressions for determining whether a sound is classed as ``loud impulsive'' are provided in the Appendix I to this subpart. (c) Exterior standards. (1) The degree of acceptability of the noise environment at a site is determined by the sound levels external to buildings or other facilities containing noise sensitive uses. The standards shall usually apply at a location 2 meters (6.5 feet) from the building housing noise sensitive activities in the direction of the predominant noise source. Where the
Sec. 51.102 Responsibilities.
(a) Surveillance of noise problem areas. Appropriate field staff shall maintain surveillance of potential noise problem areas and advise local officials, developers, and planning groups of the unacceptability of sites because of noise exposure at the earliest possible time in the decision process. Every attempt shall be made to insure that applicants' site choices are consistent with the policy and standards contained herein. (b) Notice to applicants. At the earliest possible stage, HUD program staff shall: (1) Determine the suitability of the acoustical environment of proposed projects; (2) Notify applicants of any adverse or questionable situations; and (3) Assure that prospective applicants are apprised of the standards contained herein so that future site choices will be consistent with these standards. (c) Interdepartmental coordination. HUD shall foster appropriate coordination between field offices and other departments and agencies, particularly the Environmental Protection Agency, the Department of Transportation, Department of Defense representatives, and the Department of Veterans Affairs. HUD staff shall utilize the acceptability standards in commenting on the prospective impacts of transportation facilities and other noise generators in the Environmental Impact Statement review process. [44 FR 40861, July 12, 1979, as amended at 54 FR 39525, Sept. 27, 1989; 61 FR 13333, Mar. 26, 1996]
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above 70 dB but not exceeding 75 dB. (See SEC. 51.104(a).) (5) Attenuation measures to be submitted to the Assistant Secretary for CPD for approval on a case-by-case basis. [44 FR 40861, July 12, 1979, as amended at 49 FR 12214, Mar. 29, 1984]
building location is undetermined, the standards shall apply 2 meters (6.5 feet) from the building setback line nearest to the predominant noise source. The standards shall also apply at other locations where it is determined that quiet outdoor space is required in an area ancillary to the principal use on the site. (2) The noise environment inside a building is considered acceptable if: (i) The noise environment external to the building complies with these standards, and (ii) the building is constructed in a manner common to the area or, if of uncommon construction, has at least the equivalent noise attenuation characteristics. Site Acceptability Standards ----------------------------------------------------------------------Day-night average Special sound level (in approvals and decibels) requirements ----------------------------------------------------------------------Acceptable.................... Not exceeding 65 dB(1) None. Normally Unacceptable......... Above 65 dB but not Special exceeding 75 dB. Approvals (2) Environmental Review (3). Attenuation (4). Unacceptable.................. Above 75 dB........... Special Approvals (2). Environmental Review (3). Attenuation (5). ----------------------------------------------------------------------Notes: (1) Acceptable threshold may be shifted to 70 dB in special circumstances pursuant to SEC. 51.105(a). (2) See SEC. 51.104(b) for requirements. (3) See SEC. 51.104(b) for requirements. (4) 5 dB additional attenuation required for sites above 65 dB but not exceeding 70 dB and 10 dB additional attenuation required for sites
Sec. 51.104 Special requirements.
(a)(1) Noise attenuation. Noise attenuation measures are those required in addition to attenuation provided by buildings as commonly constructed in the area, and requiring open windows for ventilation. Measures that reduce external noise at a site shall be used wherever practicable in preference to the incorporation of additional noise attenuation in buildings. Building designs and construction techniques that provide more noise attenuation than typical construction may be employed also to meet the noise attenuation requirements. (2) Normally unacceptable noise zones and unacceptable noise zones. Approvals in Normally Unacceptable Noise Zones require a minimum of 5 decibels additional sound attenuation for buildings having noisesensitive uses if the day-night average sound level is greater than 65 decibels but does not exceed 70 decibels, or a minimum of 10 decibels of additional sound attenuation if the day-night average sound level is greater than 70 decibels but does not exceed 75 decibels. Noise attenuation measures in Unacceptable Noise Zones require the approval of the Assistant Secretary for Community Planning and Development, or the Certifying Officer for activities subject to 24 CFR part 58. (See SEC. 51.104(b)(2).) {[[Page 380]]} (b) Environmental review requirements. Environmental reviews shall be conducted pursuant to the requirements of 24 CFR parts 50 and 58, as applicable, or other environmental regulations issued by the Department. These requirements are
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hereby modified for all projects proposed in the Normally Unacceptable and Unacceptable noise exposure zones as follows: (1) Normally unacceptable noise zone. (i) All projects located in the Normally Unacceptable Noise Zone require a Special Environmental Clearance except an EIS is required for a proposed project located in a largely undeveloped area, or where the HUD action is likely to encourage the establishment of incompatible land use in this noise zone. (ii) When an EIS is required, the concurrence of the Program Assistant Secretary is also required before a project can be approved. For the purposes of this paragraph, an area will be considered as largely undeveloped unless the area within a 2-mile radius of the project boundary is more than 50 percent developed for urban uses and infrastructure (particularly water and sewers) is available and has capacity to serve the project. (iii) All other projects in the Normally Unacceptable zone require a Special Environmental Clearance, except where an EIS is required for other reasons pursuant to HUD environmental policies. (2) Unacceptable noise zone. An EIS is required prior to the approval of projects with unacceptable noise exposure. Projects in or partially in an Unacceptable Noise Zone shall be submitted to the Assistant Secretary for Community Planning and Development, or the Certifying Officer for activities subject to 24 CFR part 58, for approval. The Assistant Secretary or the Certifying Officer may waive the EIS requirement in cases where noise is the only environmental issue and no outdoor noise sensitive activity will take place on the site. In such cases, an environmental review shall be made pursuant to the requirements of 24 CFR parts 50 or 58, as appropriate. [44 FR 40861, July 12, 1979, as amended at 61 FR 13333, Mar. 26, 1996]
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Sec. 51.105 Exceptions.
(a) Flexibility for non-acoustic benefits. Where it is determined that program objectives cannot be achieved on sites meeting the acceptability standard of 65 decibels, the Acceptable Zone may be shifted to Ldn 70 on a caseby-case basis if all the following conditions are satisfied: (1) The project does not require an Environmental Impact Statement under provisions of SEC. 51.104(b)(1) and noise is the only environmental issue. (2) The project has received a Special Environmental Clearance and has received the concurrence of the Environmental Clearance Officer. (3) The project meets other program goals to provide housing in proximity to employment, public facilities and transportation. (4) The project is in conformance with local goals and maintains the character of the neighborhood. (5) The project sponsor has set forth reasons, acceptable to HUD, as to why the noise attenuation measures that would normally be required for new construction in the Ldn 65 to Ldn 70 zone cannot be met. (6) Other sites which are not exposed to noise above Ldn 65 and which meet program objectives are generally not available. The above factors shall be documented and made part of the project file. [44 FR 40861, July 12, 1979, as amended at 61 FR 13334, Mar. 26, 1996]
Sec. 51.106 Implementation.
(a) Use of available data. HUD field staff shall make maximum use of noise data prepared by others when such data are determined to be current and adequately projected into the future and are in terms of the following: (1) Sites in the vicinity of airports. The noise environment around airports is described sometimes in terms of Noise Exposure Forecasts, abbreviated as NEF or,
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for these facilities sometimes encompass sites that may be subject to the requirements of this standard. Where such analyses are available they may be used on an interim basis to establish the acceptability of sites under this standard. The Department of Defense uses day-night average sound level based on C-weighted sound level, symbolized LCdn, for the analysis of loud impulsive sounds. Where such analyses are provided, the 8 decibel addition specified in SEC. 51.103(b), is not required, and the same numerical values of daynight average sound level used on an interim basis to determine site suitability for non-impulsive sounds apply to the LCdn. (4) Use of areawide acoustical data. HUD encourages the preparation and use of areawide acoustical information, such as noise contours for airports. Where such new or revised contours become available for airports (civil or military) and military installations they shall first be referred to the HUD State Office (Environmental Officer) for review, evaluation and decision on appropriateness for use by HUD. The HUD State Office shall submit revised contours to the Assistant Secretary for Community Planning and Development for review, evaluation and decision whenever the area affected is changed by 20 percent or more, or whenever it is determined that the new contours will have a significant effect on HUD programs, or whenever the contours are not provided in a methodology acceptable under SEC. 51.106(a)(1) or in other cases where the HUD State Office determines that Headquarters review is warranted. For other areawide acoustical data, review is required only where existing areawide data are being utilized and where such data have been changed to reflect changes in the measurement methodology or underlying noise source assumptions. Requests for determination on usage of new or revised areawide data shall include the following:
in the State of California, as Community Noise Equivalent Level, abbreviated as CNEL. The noise environment for sites in the vicinity of airports for which day-night average sound level data are not available may {[[Page 381]]} be evaluated from NEF or CNEL analyses using the following conversions to DNL: DNL[ap] NEF+35 DNL[ap] CNEL (2) Sites in the vicinity of highways. Highway projects receiving Federal aid are subject to noise analyses under the procedures of the Federal Highway Administration. Where such analyses are available they may be used to assess sites subject to the requirements of this standard. The Federal Highway Administration employs two alternate sound level descriptors: (i) The A-weighted sound level not exceeded more than 10 percent of the time for the highway design hour traffic flow, symbolized as L10; or (ii) the equivalent sound level for the design hour, symbolized as Leq. The day-night average sound level may be estimated from the design hour L10 or Leq values by the following relationships, provided heavy trucks do not exceed 10 percent of the total traffic flow in vehicles per 24 hours and the traffic flow between 10 p.m. and 7 a.m. does not exceed 15 percent of the average daily traffic flow in vehicles per 24 hours: DNL[ap] L10 (design hour)--3 decibels DNL[ap] Leg (design hour) decibels Where the auto/truck mix and time of day relationships as stated in this section do not exist, the HUD Noise Assessment Guidelines or other noise analysis shall be used. (3) Sites in the vicinity of installations producing loud impulsive sounds. Certain Department of Defense installations produce loud impulsive sounds from artillery firing and bombing practice ranges. Noise analyses
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(i) Maps showing old, if applicable, and new noise contours, along with brief description of data source and methodology. (ii) Impact on existing and prospective urbanized areas and on development activity. (iii) Impact on HUD-assisted projects currently in processing. (iv) Impact on future HUD program activity. Where a field office has determined that immediate approval of new areawide data is necessary and warranted in limited geographic areas, the request for approval should state the circumstances warranting such approval. Actions on proposed projects shall not be undertaken while new areawide noise data are being considered for HUD use except where the proposed location is affected in the same {[[Page 382]]} manner under both the old and new noise data. (b) Site assessments. Compliance with the standards contained in SEC. 51.103(c) shall, where necessary, be determined using noise assessment guidelines, handbooks, technical documents and procedures issued by the Department. (c) Variations in site noise levels. In many instances the noise environment will vary across a site, with portions of the site being in an Acceptable noise environment and other portions in a Normally Unacceptable noise environment. The standards in SEC. 51.103(c) shall apply to the portions of a building or buildings used for residential purposes and for ancillary noise sensitive open spaces. (d) Noise measurements. Where noise assessments result in a finding that the site is borderline or questionable, or is controversial, noise measurements may be performed. Where it is determined that noise measurements are required, such measurements will be conducted in accordance with methods and measurement criteria established by the Department. Locations for noise measurements will depend on the location of noise sensitive uses that are nearest to the predominant noise source (see SEC. 51.103(c)).
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(e) Projections of noise exposure. In addition to assessing existing exposure, future conditions should be projected. To the extent possible, noise exposure shall be projected to be representative of conditions that are expected to exist at a time at least 10 years beyond the date of the project or action under review. (f) Reduction of site noise by use of berms and/or barriers. If it is determined by adequate analysis that a berm and/or barrier will reduce noise at a housing site, and if the barrier is existing or there are assurances that it will be in place prior to occupancy, the environmental noise analysis for the site may reflect the benefits afforded by the berm and/or barrier. In the environmental review process under SEC. 51.104(b), the location height and design of the berm and/or barrier shall be evaluated to determine its effectiveness, and impact on design and aesthetic quality, circulation and other environmental factors. [44 FR 40861, July 12, 1979, as amended at 61 FR 13334, Mar. 26, 1996] Appendix I to Subpart B of Part 51-Definition of Acoustical Quantities 1. Sound Level. The quantity in decibels measured with an instrument satisfying requirements of American National Standard Specification for Type 1 Sound Level Meters S1.4-1971. Fast timeaveraging and A-frequency weighting are to be used, unless others are specified. The sound level meter with the A-weighting is progressively less sensitive to sounds of frequency below 1,000 hertz (cycles per second), somewhat as is the ear. With fast time averaging the sound level meter responds particularly to recent sounds almost as quickly as does the ear in judging the loudness of a sound. 2. Average Sound Level. Average sound level, in decibels, is the level of the mean-square A-weighted sound pressure during the stated time period, with reference to the square of the standard reference sound pressure of 20 micropascals. Day-night average sound level, abbreviated as DNL, and symbolized
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mathematically as Ldn is defined as: [GRAPHIC] [TIFF OMITTED] TC12OC91.000 Time t is in seconds, so the limits shown in hours and minutes are actually interpreted in seconds. LA(t) is the time varying value of A-weighted sound level, the quantity in decibels measured by an instrument satisfying requirements of American National Standard {[[Page 383]]} Specification for Type 1 Sound Level Meters S1.4-1971. 3. Loud Impulsive Sounds. When loud impulsive sounds such as sonic booms or explosions are anticipated contributors to the noise environment at a site, the contribution to day-night average sound level produced by the loud impulsive sounds shall have 8 decibels added to it in assessing the acceptability of a site. A loud impulsive sound is defined for the purpose of this regulation as one for which: (i) The sound is definable as a discrete event wherein the sound level increases to a maximum and then decreases in a total time interval of approximately one second or less to the ambient background level that exists without the sound; and (ii) The maximum sound level (obtained with slow averaging time and Aweighting of a Type 1 sound level meter whose characteristics comply with ANSI S1.4-1971) exceeds the sound level prior to the onset of the event by at least 6 decibels; and (iii) The maximum sound level obtained with fast averaging time of a sound level meter exceeds the maximum value obtained with slow averaging time by at least 4 decibels. [44 FR 40861, July 12, 1979; 49 FR 10253, Mar. 20, 1984; 49 FR 12214, Mar. 29, 1984]
Handling Conventional Fuels or Chemicals of an Explosive or Flammable Nature
Authority: 42 U.S.C. 3535(d). Source: 49 FR 5103, Feb. 10, 1984, unless otherwise noted.
Sec. 51.200 Purpose.
The purpose of this subpart C is to: (a) Establish safety standards which can be used as a basis for calculating acceptable separation distances (ASD) for HUDassisted projects from specific, stationary, hazardous operations which store, handle, or process hazardous substances; (b) Alert those responsible for the siting of HUD-assisted projects to the inherent potential dangers when such projects are located in the vicinity of such hazardous operations; (c) Provide guidance for identifying those hazardous operations which are most prevalent; (d) Provide the technical guidance required to evaluate the degree of danger anticipated from explosion and thermal radiation (fire); and (e) Provide technical guidance required to determine acceptable separation distances from such hazards. [49 FR 5103, Feb. 10, 1984, as amended at 61 FR 13334, Mar. 26, 1996]
Sec. 51.201 Definitions.
The terms Department and Secretary are defined in 24 CFR part 5. Acceptable separation distance (ASD)-means the distance beyond which the explosion or combustion of a hazard is not likely to cause structures or individuals to be subjected to blast overpressure or thermal radiation flux levels in excess of the safety standards in SEC. 51.203. The ASD is determined by applying the safety standards established by this subpart C to the guidance set forth in HUD Guidebook, ``Siting of HUD-Assisted Projects Near Hazardous Facilities.'' {[[Page 384]]}
Subpart C_Siting of HUDAssisted Projects Near Hazardous Operations
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Blast overpressure--means the pressure, in pounds per square inch, in excess of normal atmospheric pressure on the surrounding medium caused by an explosion. Danger zone--means the land area circumscribed by the radius which delineates the ASD of a given hazard. Hazard--means any stationary container which stores, handles or processes hazardous substances of an explosive or fire prone nature. The term ``hazard'' does not include pipelines for the transmission of hazardous substances, if such pipelines are located underground or comply with applicable Federal, State and local safety standards. Also excepted are: (1) Containers with a capacity of 100 gallons or less when they contain common liquid industrial fuels, such as gasoline, fuel oil, kerosene and crude oil since they generally would pose no danger in terms of thermal radiation of blast overpressure to a project; and (2) facilities which are shielded from a proposed HUDassisted project by the topography, because these topographic features effectively provide a mitigating measure already in place. Hazardous substances--means petroleum products (petrochemicals) and chemicals that can produce blast overpressure or thermal radiation levels in excess of the standards set forth in SEC. 51.203. A specific list of hazardous substance is found in appendix I to this subpart. HUD-assisted project--the development, construction, rehabilitation, modernization or conversion with HUD subsidy, grant assistance, loan, loan guarantee, or mortgage insurance, of any project which is intended for residential, institutional, recreational, commercial or industrial use. For purposes of this subpart the terms ``rehabilitation'' and ``modernization'' refer only to such repairs and renovation of a building or buildings as will result in an increased number of people being exposed to hazardous operations by increasing residential densities, converting
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the type of use of a building to habitation, or making a vacant building habitable. Thermal radiation level--means the emission and propagation of heat energy through space or a material medium, expressed in BTU per square foot per hour (BTU/ft.2 hr.). [49 FR 5103, Feb. 10, 1984, as amended at 61 FR 5204, Feb. 9, 1996; 61 FR 13334, Mar. 26, 1996]
Sec. 51.202 Approval of HUDassisted projects.
(a) The Department will not approve an application for assistance for a proposed project located at less than the acceptable separation distance from a hazard, as defined in SEC. 51.201, unless appropriate mitigating measures, as defined in SEC. 51.205, are implemented, or unless mitigating measures are already in place. (b) In the case of all applications for proposed HUD-assisted projects, the Department shall evaluate projected development plans in the vicinity of these projects to determine whether there are plans to install a hazardous operation in close proximity to the proposed project. If the evaluation shows that such a plan exists, the Department shall not approve assistance for the project unless the Department obtains satisfactory assurances that adequate mitigating measures will be taken when the hazardous operation is installed. [49 FR 5103, Feb. 10, 1984, as amended at 61 FR 13334, Mar. 26, 1996]
Sec. 51.203 Safety standards.
The following standards shall be used in determining the acceptable separation distance of a proposed HUD-assisted project from a hazard: (a) Thermal Radiation Safety Standard. Projects shall be located so that: (1) The allowable thermal radiation flux level at the building shall not exceed 10,000 BTU/sq. ft. per hr.; (2) The allowable thermal radiation flux level for outdoor, unprotected facilities
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(a) The nature of the topography shields the proposed project from the hazard. (b) An existing permanent fire resistant structure of adequate size and strength will shield the proposed project from the hazard. (c) A barrier is constructed surrounding the hazard, at the site of the project, or in between the potential hazard and the proposed project. (d) The structure and outdoor areas used by people are designed to withstand blast overpressure and thermal radiation anticipated from the potential hazard (e.g., the project is of masonry and steel or reinforced concrete and steel construction).
or areas of congregation shall not exceed 450 BTU/sq. ft. per hour. (b) Blast Overpressure Safety Standard. Projects shall be located so that the maximum allowable blast overpressure at both buildings and outdoor, unprotected facilities or areas shall not exceed 0.5 psi. (c) If a hazardous substance constitutes both a thermal radiation and blast overpressure hazard, the ASD for each hazard shall be calculated, and {[[Page 385]]} the larger of the two ASDs shall be used to determine compliance with this subpart. (d) Background information on the standards and the logarithmic thermal radiation and blast overpressure charts that provide assistance in determining acceptable separation distances are contained in appendix II to this subpart C. [49 FR 5103, Feb. 10, 1984, as amended at 61 FR 13334, Mar. 26, 1996]
Sec. 51.206 Implementation.
This subpart C shall be implemented for each proposed HUD-assisted project by the HUD approving official or responsible entity responsible for review of the project. The implementation procedure will be part of the environmental review process in accordance with the procedures set forth in 24 CFR parts 50 and 58. [61 FR 13334, Mar. 26, 1996]
Sec. 51.204 HUD-assisted hazardous facilities.
In reviewing applications for proposed HUD-assisted projects involving the installation of hazardous facilities, the Department shall ensure that such hazardous facilities are located at an acceptable separation distance from residences and from any other facility or area where people may congregate or be present. The mitigating measures listed in SEC. 51.205 may be taken into account in determining compliance with this section.
Sec. 51.207 Special circumstances.
The Secretary or the Secretary's designee may, on a case-by-case basis, when circumstances warrant, require the application of this subpart C with respect to a substance not listed in appendix I to this subpart C that would create thermal or overpressure effect in excess of that listed in SEC. 51.203. [61 FR 13334, Mar. 26, 1996]
Sec. 51.205 Mitigating measures.
Application of the standards for determining an Acceptable Separation Distance (ASD) for a HUD-assisted project from a potential hazard of an explosion or fire prone nature is predicated on level topography with no intervening object(s) between the hazard and the project. Application of the standards can be eliminated or modified if:
Sec. 51.208 Reservation of administrative and legal rights.
Publication of these standards does not constitute a waiver of any right: (a) Of HUD to disapprove a project proposal if the siting is too close to a potential hazard not covered by this subpart, and (b) of HUD or any person or other entity to seek to abate or to
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collect damages occasioned by a nuisance, whether or not covered by the subpart. Appendix I to Subpart C of Part 51-Specific Hazardous Substances The following is a list of specific petroleum products and chemicals defined to be hazardous substances under SEC. 51.201. Hazardous Liquids Acetic Acid Acetic Anhydride Acetone Acrylonitrile Amyl Acetate Amyl Alcohol Benzene Butyl Acetate Butyl Acrylate Butyl Alcohol Carbon Bisulfide Carbon Disulfide Cellosolve Cresols Crude Oil (Petroleum) Cumene Cyclohexane No. 2 Diesel Fuel Ethyl Acetate Ethyl Acrylate Ethyl Alcohol Ethyl Benzene Ethyl Dichloride Ethyl Ether Gasoline Heptane Hexane Isobutyl Acetate Isobutyl Alcohol Isopropyl Acetate Isopropyl Alcohol Jet Fuel and Kerosene {[[Page 386]]} Methyl Alcohol Methyl Amyl Alcohol Methyl Cellosolve Methyl Ethyl Ketone Naptha Pentane Propylene Oxide Toluene Vinyl Acetate Xylene
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Hazardous Gases Acetaldehyde Butadiene Butane Ethene Ethylene Ethylene Oxide Hydrogen Liquefied Natural Gas (LNG) Liquefied Petroleum Gas (LPG) Propane Propylene Vinyl Chloride (Primary Source: ``Urban Development Siting with respect to Hazardous Commercial/Industrial Facilities,'' by Rolf Jensen and Associates, Inc., April 1982) [49 FR 5105, Feb. 10, 1984; 49 FR 12214, Mar. 29, 1984] Appendix II to Subpart C of Part 51-Development of Standards; Calculation Methods I. Background Information Concerning the Standards (a) Thermal Radiation: (1) Introduction. Flammable products stored in above ground containers represent a definite, potential threat to human life and structures in the event of fire. The resulting fireball emits thermal radiation which is absorbed by the surroundings. Combustible structures, such as wooden houses, may be ignited by the thermal radiation being emitted. The radiation can cause severe burn, injuries and even death to exposed persons some distance away from the site of the fire. (2) Criteria for Acceptable Separation Distance (ASD). Wooden buildings, window drapes and trees generally ignite spontaneously when exposed for a relatively long period of time to thermal radiation levels of approximately 10,000 Btu/hr. sq. ft. It will take 15 to 20 minutes for a building to ignite at that degree of thermal intensity. Since the reasonable response time for fire fighting units in urbanized areas is approximately five to ten minutes, a standard of 10,000 BTU/hr. sq. ft. is considered an acceptable level of thermal radiation for buildings.
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been determined by the military and corroborated by two independent studies conducted for the Department of Housing and Urban Development that 0.5 psi is the acceptable level of blast overpressure for both buildings and occupants, because a frame structure can normally withstand that level of external exertion with no serious structural damage, and it is unlikely that human beings inside the building would normally suffer any serious injury. Using this as the safety standard for blast overpressure, nomographs have been developed from which an ASD can be determined for a given quantify of hazardous substance. These nomographs are contained in the handbook with detailed instructions on their use. (c) Hazard evaluation: The Acceptable Separation Distances for buildings, which are determined for thermal radiation and blast overpressure, delineate separate identifiable danger zones for each potential accident source. For some materials the fire danger zone will have the greatest radius and cover the largest area, while for others the explosion danger zone will be the greatest. For example, conventional petroleum fuel products stored in unpressurized tanks do not emit blast overpressure of dangerous levels when ignited. In most cases, hazardous substances will be stored in {[[Page 387]]} pressurized containers. The resulting blast overpressure will be experienced at a greater distance than the resulting thermal radiation for the standards set in Section 51.203. In any event the hazard requiring the greatest separation distance will prevail in determining the location of HUD-assisted projects. The standards developed for the protection of people and property are given in the following table. ----------------------------------------------------------------------Blast Thermal radiation overpressure -----------------------------------------------------------------------
People in outdoor areas exposed to a thermal radiation flux level of approximately 1,500 Btu/ft2 hr will suffer intolerable pain after 15 seconds. Longer exposure causes blistering, permanent skin damage, and even death. Since it is assumed that children and the elderly could not take refuge behind walls or run away from the thermal effect of the fire within the 15 seconds before skin blistering occurs, unprotected (outdoor) areas, such as playgrounds, parks, yards, school grounds, etc., must be placed at such a distance from potential fire locations so that the radiation flux level is well below 1500 Btu/ ft2 hr. An acceptable flux level, particularly for elderly people and children, is 450 Btu/ft2 hr. The skin can be exposed to this degree of thermal radiation for 3 minutes or longer with no serious detrimental effect. The result would be the same as a bad sunburn. Therefore, the standard for areas in which there will be exposed people, e.g. outdoor recreation areas such as playgrounds and parks, is set at 450 Btu/hr. sq. ft. Areas covered also include open space ancillary to residential structures, such as yard areas and vehicle parking areas. (3) Acceptable Separation Distance From a Potential Fire Hazard. This is the actual setback required for the safety of occupied buildings and their inhabitants, and people in open spaces (exposed areas) from a potential fire hazard. The specific distance required for safety from such a hazard depends upon the nature and the volume of the substance. The Technical Guidebook entitled ``Urban Development Siting With Respect to Hazardous/Commercial Industrial Facilities,'' which supplements this regulation, contains the technical guidance required to compute Acceptable Separation Distances (ASD) for those flammable substances most often encountered. (b) Blast Overpressure: The Acceptable Separation Distance (ASD) for people and structures from materials prone to explosion is dependent upon the resultant blast measured in pounds per square inch (psi) overpressure. It has
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Amount of acceptable exposure 10,000 BTU/ft2 hr.. 0.5 psi. allowed for building structures. Amount of acceptable exposure 450 BTU/ft2 hr..... 0.5 psi. allowed for people in open areas. ----------------------------------------------------------------------Problem Example The following example is given as a guide to assist in understanding how the procedures are used to determine an acceptable separation distance. The technical data are found in the HUD Guidebook. Liquid propane is used in the example since it is both an explosion and a fire hazard. In this hypothetical case a proposed housing project is to be located 850 feet from a 30,000 gallon liquid propane (LPG) tank. The objective is to determine the acceptable separation distance from the LPG tank. Since propane is both explosive and fire prone it will be necessary to determine the ASD for both explosion and for fire. The greatest of the two will govern. There is no dike around the tank in this example. Nomographs from the technical Guidebook have been reproduced to facilitate the solving of the problem. ASD For Explosion Use Figure 1 to determine the acceptable separation distance for explosion. The graph depicted on Figure 1 is predicated on a blast overpressure of 0.5 psi. The ASD in feet can be determined by applying the quantity of the hazard (in gallons) to the graph. In this case locate the 30,000 gallon point on the horizontal axis and draw a vertical line from that point to the intersection with the straight line curve. Then draw a horizontal line from the point where the lines cross to the left vertical axis where the ACCEPTABLE SEPARATION DISTANCE of 660 feet is found. Therefore the ASD for explosion is 660 feet Since the proposed project site is located 850 feet from the tank it is located at
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a safe distance with regards to blast overpressure. {[[Page 388]]} [GRAPHIC] [TIFF OMITTED] TC12OC91.001 ASD For Fire To determine the ASD for fire it will be necessary to first find the fire width (diameter of the fireball) on Figure 2. Then apply this to Figure 3 to determine the ASD. Since there are two safety standards for fire: (a) 10,000 BTU/ ft2 hr. for buildings; and (b) 450 BTU/ft2 hr. for people in exposed areas, it will be necessary to determine an ASD for each. To determine the fire width locate the 30,000 gallon point on the horizontal axis on Figure 2 and draw a vertical line to the straight line curve. Then draw a horizontal line from the point where the lines cross to the left vertical axis where the FIRE WIDTH is found to be 350 feet. {[[Page 389]]} Now locate the 350 ft. point on the horizontal axis of Figure 3 and draw a vertical line from that point to curves 1 and 2. Then draw horizontal lines from the points where the lines cross to the left vertical axis where the ACCEPTABLE SEPARATION DISTANCES of 240 feet for buildings and 1,150 feet for exposure to people is found. Based on this the proposed project site is located at a safe distance from a potential fireball. However, exposed playgrounds or other exposed areas of congregation must be at least 1,150 feet from the tank, or be appropriately shielded from a potential fireball. (Source: HUD Handbook, ``Urban Development Siting With Respect to Hazardous Commercial/Industrial Facilities.'') [GRAPHIC] [TIFF OMITTED] TC12OC91.002 {[[Page 390]]} [GRAPHIC] [TIFF OMITTED] TC12OC91.003
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(c) Civil Airport. An existing commercial service airport as designated in the National Plan of Integrated Airport Systems prepared by the Federal Aviation Administration in accordance with section 504 of the Airport and Airway Improvement Act of 1982. (d) Runway Clear Zones and Clear Zones. Areas immediately beyond the ends of a runway. The standards for Runway Clear Zones for civil airports are established by FAA regulation 14 CFR part 152. The standards for Clear Zones for military airfields are established by DOD Instruction 4165.57, 32 CFR part 256.
[49 FR 5105, Feb. 10, 1984; 49 FR 12214, Mar. 29, 1984] {[[Page 391]]}
Subpart D_Siting of HUD Assisted Projects in Runway Clear Zones at Civil Airports and Clear Zones and Accident Potential Zones at Military Airfields
Authority: SEC. 2, Housing Act of 1949, as amended, 42 U.S.C. 1441, affirmed by SEC. 2, HUD Act of 1969, Pub. L. 90448; SEC. 7(d), HUD Act of 1965, 42 U.S.C. 3535(d); OMB, Fed'l Mgmt. Cir. 752: Compatible Land Uses At Federal Airfields. Source: 49 FR 880, Jan. 6, 1984, unless otherwise noted.
Sec. 51.302 Coverage.
(a) These policies apply to HUD programs which provide assistance, subsidy or insurance for construction, land development, community development or redevelopment or any other provision of facilities and services which are designed to make land available for construction. When the HUD assistance, subsidy or insurance is used to make land available for construction rather than for the actual construction, the provision of the HUD assistance, subsidy or insurance shall be dependent upon whether the facility to be built is itself acceptable in accordance with the standards in SEC. 51.303. (b) These policies apply not only to new construction but also to substantial or major modernization and rehabilitation and to any other program which significantly prolongs the physical or economic life of existing facilities or which, in the case of Accident Potential Zones: (1) Changes the use of the facility so that it becomes one which is no longer acceptable in accordance with the standards contained in SEC. 51.303(b); (2) Significantly increases the density or number of people at the site; or (3) Introduces explosive, flammable or toxic materials to the area. (c) Except as noted in SEC. 51.303(a)(3), these policies do not apply to HUD programs where the action only
Sec. 51.300 Purpose.
It is the purpose of this subpart to promote compatible land uses around civil airports and military airfields by identifying suitable land uses for Runway Clear Zones at civil airports and Clear Zones and Accident Potential Zones at military airfields and by establishing them as standards for providing HUD assistance, subsidy or insurance. [49 FR 880, Jan. 6, 1984, as amended at 61 FR 13334, Mar. 26, 1996]
Sec. 51.301 Definitions.
For the purposes of this regulation, the following definitions apply: (a) Accident Potential Zone. An area at military airfields which is beyond the Clear Zone. The standards for the Accident Potential Zones are set out in Department of Defense Instruction 4165.57, ``Air Installations Compatible Use Zones,'' November 8, 1977, 32 CFR part 256. There are no Accident Potential Zones at civil airports. (b) Airport Operator. The civilian or military agency, group or individual which exercises control over the operations of the civil airport or military airfield.
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involves the purchase, sale or rental of an existing property without significantly prolonging the physical or economic life of the property. (d) The policies do not apply to research or demonstration projects which do not result in new construction or reconstruction, to interstate land sales registration, or to any action or emergency assistance which is provided to save lives, protect property, protect public health and safety, or remove debris and wreckage. [49 FR 880, Jan. 6, 1984, as amended at 61 FR 13334, Mar. 26, 1996] {[[Page 392]]}
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operator. The buyer must sign a statement acknowledging receipt of this information. (b) HUD policy for actions in Accident Potential Zones at Military Airfields. HUD policy is to discourage the provision of any assistance, subsidy or insurance for projects and actions in the Accident Potential Zones. To be approved, projects must be generally consistent with the recommendations in the Land Use Compatibility Guidelines For Accident Potential Zones chart contained in DOD Instruction 4165.57, 32 CFR part 256. [49 FR 880, Jan. 6, 1984, as amended at 61 FR 13334, Mar. 26, 1996]
Sec. 51.304 Responsibilities. Sec. 51.303 General policy.
It is HUD's general policy to apply standards to prevent incompatible development around civil airports and military airfields. (a) HUD policy for actions in Runway Clear Zones and Clear Zones. (1) HUD policy is not to provide any assistance, subsidy or insurance for projects and actions covered by this part except as stated in SEC. 51.303(a)(2) below. (2) If a project proposed for HUD assistance, subsidy or insurance is one which will not be frequently used or occupied by people, HUD policy is to provide assistance, subsidy or insurance only when written assurances are provided to HUD by the airport operator to the effect that there are no plans to purchase the land involved with such facilities as part of a Runway Clear Zone or Clear Zone acquisition program. (3) Special notification requirements for Runway Clear Zones and Clear Zones. In all cases involving HUD assistance, subsidy, or insurance for the purchase or sale of an existing property in a Runway Clear Zone or Clear Zone, HUD (or the responsible entity or recipient under 24 CFR part 58) shall advise the buyer that the property is in a Runway Clear Zone or Clear Zone, what the implications of such a location are, and that there is a possibility that the property may, at a later date, be acquired by the airport (a) The following persons have the authority to approve actions in Accident Potential Zones: (1) For programs subject to environmental review under 24 CFR part 58: the Certifying Officer of the responsible entity as defined in 24 CFR part 58. (2) For all other HUD programs: the HUD approving official having approval authority for the project. (b) The following persons have the authority to approve actions in Runway Clear Zones and Clear Zones: (1) For programs subject to environmental review under 24 CFR part 58: The Certifying Officer of the responsible entity as defined in 24 CFR part 58. (2) For all other HUD programs: the Program Assistant Secretary. [61 FR 13335, Mar. 26, 1996]
Sec. 51.305 Implementation.
(a) Projects already approved for assistance. This regulation does not apply to any project approved for assistance prior to the effective date of the regulation whether the project was actually under construction at that date or not. (b) Acceptable data on Runway Clear Zones, Clear Zones and Accident Potential Zones. The only Runway Clear Zones, Clear Zones and Accident Potential Zones which will be recognized in applying this part are those provided by the airport operators and
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which for civil airports are defined in accordance with FAA regulations 14 CFR part 152 or for military airfields, DOD Instruction 4165.57, 32 CFR part 256. All data, including changes, related to the dimensions of Runway Clear Zones for civil airports shall be verified with the nearest FAA Airports District Office before use by HUD. (c) Changes in Runway Clear Zones, Clear Zones, and Accident Potential Zones. If changes in the Runway Clear Zones, Clear Zones or Accident Potential Zones are made, the field offices shall immediately adopt these revised zones for use in reviewing proposed projects. (d) The decision to approve projects in the Runway Clear Zones, Clear {[[Page 393]]} Zones and Accident Potential Zones must be documented as part of the enviornmental assessment or, when no assessment is required, as part of the project file.
24 CFR 55 Floodplain Management
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 396-405] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 55_FLOODPLAIN MANAGEMENT Subpart A_General 55.1 Purpose and basic responsibility. 55.2 Terminology. 55.3 Assignment of responsibilities. Subpart B_Application of Executive Order on Floodplain Management 55.10 Environmental review procedures under 24 CFR parts 50 and 58. 55.11 Applicability of subpart C decision making process. 55.12 Inapplicability of 24 CFR part 55 to certain categories of proposed actions. Subpart C_Procedures for Making Determinations on Floodplain Management 55.20 Decision making process. 55.21 Notification of floodplain hazard. 55.22 Conveyance restrictions for the disposition of multifamily real property. 55.23 [Reserved] 55.24 Aggregation. 55.25 Areawide compliance. 55.26 Adoption of another agency's review under the executive orders. 55.27 Documentation. Authority: 42 U.S.C. 3535(d) and 4001-4128; E.O. 11988, 42 FR 26951, 3 CFR, 1977 Comp., p. 117. Source: 59 FR 19107, Apr. 21, 1994, unless otherwise noted.
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Subpart A_General
Sec. 55.1 Purpose and basic responsibility.
(a) This part implements the requirements of Executive Order 11988, Floodplain Management, and employs the principles of the Unified National Program for Floodplain Management. It covers the proposed acquisition, construction, improvement, disposition, financing and use of properties located in a floodplain for which approval is required either from HUD under any applicable HUD program or from a grant recipient subject to 24 CFR part 58. This part does not prohibit approval of such actions (except for certain actions in high hazard areas), but provides a consistent means for implementing the Department's interpretation of the executive order in the project approval decision making processes of HUD and of grant recipients subject to 24 CFR part 58. The implementation of Executive Order 11988 under this part shall be conducted by HUD, for Departmentadministered programs subject to environmental review under 24 CFR part 50, and by authorized recipients of HUD financial assistance subject to environmental review under 24 CFR part 58. {[[Page 397]]} (b) Under section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), proposed HUD financial assistance (including mortgage insurance) for acquisition or construction purposes in any ``area having special flood hazards'' (a flood zone designated by the Federal Emergency Management Agency (FEMA)) shall not be approved in communities identified by FEMA as eligible for flood insurance but which are not participating in the National Flood Insurance Program. This prohibition only applies to proposed HUD financial assistance in a FEMAdesignated area of special flood hazard one year after the community has been formally notified by FEMA of the designation of the affected area. This prohibition is not applicable to HUD
financial assistance in the form of formula grants to states, including financial assistance under the State-administered CDBG Program (24 CFR part 570, subpart I) and the State-administered Rental Rehabilitation Program (24 CFR 511.51), Emergency Shelter Grant amounts allocated to States (24 CFR parts 575 and 576), and HOME funds provided to a state under Title II of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 1270112839). (c) Except with respect to actions listed in SEC. 55.12(c), no HUD financial assistance (including mortgage insurance) may be approved after May 23, 1994 with respect to: (1) Any action, other than a functionally dependent use, located in a floodway; (2) Any critical action located in a coastal high hazard area; or (3) Any non-critical action located in a coastal high hazard area, unless the action is designed for location in a coastal high hazard area or is a functionally dependent use. An action will be considered to be designed for location in a coastal high hazard area if: (i) In the case of new construction or substantial improvement, the work meets the current standards for V zones in FEMA regulations (44 CFR 60.3(e)) and, if applicable, the Minimum Property Standards for such construction in 24 CFR 200.926d(c)(4)(iii); or (ii) In the case of existing construction (including any minor improvements): (A) The work met FEMA elevation and construction standards for a coastal high hazard area (or if such a zone or such standards were not designated, the 100-year floodplain) applicable at the time the original improvements were constructed; or (B) If the original improvements were constructed before FEMA standards for the 100-year floodplain became effective or before FEMA designated the location of the action as within the 100-year floodplain, the work would meet at least the earliest FEMA
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and police stations, and roadways providing sole egress from flood-prone areas); or (C) Are likely to contain occupants who may not be sufficiently mobile to avoid loss of life or injury during flood or storm events, e.g., persons who reside in hospitals, nursing homes, convalescent homes, intermediate care facilities, board and care facilities, and retirement service centers. Housing for independent living for the elderly is not considered a critical action. (ii) Critical actions shall not be approved in floodways or coastal high hazard areas. (3) 500-year floodplain means the minimum floodplain of concern for Critical Actions and is the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year. (See SEC. 55.2(b)(1) for appropriate data sources.) (4) Floodway means that portion of the floodplain which is effective in carrying flow, where the flood hazard is generally the greatest, and where water depths and velocities are the highest. The term ``floodway'' as used here is consistent with ``regulatory floodways'' as identified by FEMA. (See SEC. 55.2(b)(1) for appropriate data sources.) (5) Functionally dependent use means a land use that must necessarily be conducted in close proximity to water (e.g., a dam, marina, port facility, water-front park, and many types of bridges). (6) High hazard area means a floodway or a coastal high hazard area. (7) 100-year floodplain means the floodplain of concern for this part and is the area subject to a one percent or greater chance of flooding in any given year. (See SEC. 55.2(b)(1) for appropriate data sources.) (8)(i) Substantial improvement means either: (A) Any repair, reconstruction, modernization or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either: (1) Before the improvement or repair is started; or
standards for construction in the 100-year floodplain.
Sec. 55.2 Terminology.
(a) With the exception of those terms defined in paragraph (b) of this section, the terms used in this part shall follow the definitions contained in section 6 of Executive Order 11988 and in the Floodplain Management Guidelines for Implementing Executive Order 11988 (43 FR 6030, February 10, 1978) issued by the Water Resources Council; and the terms ``criteria'' and ``Regular Program'', shall follow the definitions contained in FEMA regulations at 44 CFR 59.1. (b) The definitions of the following terms in Executive Order 11988 and related documents affecting this part are modified for purposes of this part: (1) Coastal high hazard area means the area subject to high velocity waters, including but not limited to hurricane wave wash or tsunamis. The area is designated on a Flood Insurance Rate Map (FIRM) under FEMA regulations as Zone V1-30, VE, or V. (FIRMs as well as Flood Hazard Boundary Maps (FHBM) shall also be relied on for the delineation of ``100-year floodplains'' (SEC. 55.2(b)(8)), ``500-year floodplains'' (SEC. 55.2(b)(3)), and ``floodways'' (SEC. 55.2(b)(4)). (2)(i) Critical action means any activity for which even a slight chance of flooding would be too great, because such flooding might result in loss of life, injury to persons, or damage to property. Critical actions include activities that create, maintain or extend {[[Page 398]]} the useful life of those structures or facilities that: (A) Produce, use or store highly volatile, flammable, explosive, toxic or water-reactive materials; (B) Provide essential and irreplaceable records or utility or emergency services that may become lost or inoperative during flood and storm events (e.g., data storage centers, generating plants, principal utility lines, emergency operations centers including fire
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(2) If the structure has been damaged, and is being restored, before the damage occurred; or (B) Any repair, reconstruction, modernization or improvement of a structure that results in an increase of more than twenty percent in the number of dwelling units in a residential project or in the average peak number of customers and employees likely to be on-site at any one time for a commercial or industrial project. (ii) Substantial improvement may not be defined to include either: (A) Any project for improvement of a structure to comply with existing state or local health, sanitary or safety code specifications that is solely necessary to assure safe living conditions, or (B) Any alteration of a structure listed on the National Register of Historical Places or on a State Inventory of Historic Places. (iii) Structural repairs, reconstruction, or improvements not meeting this definition are considered ``minor improvements''.
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under their jurisdiction that are proposed to be conducted, supported, or permitted in a floodplain; (2) Ensure that actions approved by HUD or grant recipients are monitored and that any prescribed mitigation is implemented; (3) Ensure that the offices under their jurisdiction have the technical resources to implement the requirements of this part; and (4) Incorporate in departmental regulations, handbooks, and project and site standards those criteria, standards, and procedures necessary to comply with the requirements of this part. (c) Recipient Certifying Officer. In accordance with section 9 of Executive Order 11988, Certifying Officers of grant recipients administering activities subject to 24 CFR part 58 shall: (1) Comply with this part in carrying out HUD-assisted programs, and (2) Monitor approved actions and ensure that any prescribed mitigation is implemented.
Sec. 55.3 Assignment of responsibilities.
(a)(1) The Assistant Secretary for Community Planning and Development (CPD) shall oversee: (i) The Department's implementation of the order and this part in all HUD programs, and (ii) The implementation activities of HUD program managers and grant recipients for HUD financial assistance subject to 24 CFR part 58. (2) In performing these responsibilities, the Assistant Secretary for CPD shall make pertinent policy determinations in cooperation with appropriate program offices and provide necessary assistance, training, publications, and procedural guidance. (b) Other HUD Assistant Secretaries, the General Counsel, and the President of the Government National Mortgage Association (GNMA) shall: (1) Ensure compliance with this part for all actions {[[Page 399]]}
Subpart B_Application of Executive Order on Floodplain Management
Sec. 55.10 Environmental review procedures under 24 CFR parts 50 and 58.
(a) Where an environmental review is required under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332, and 24 CFR part 50 or part 58, compliance with this part shall be completed before the completion of an environmental assessment (EA) including a finding of no significant environmental impact (FONSI), or an environmental impact statement (EIS), in accordance with the decision points listed in 24 CFR 50.17 (a) through (h), or before the preparation of an EA under 24 CFR 58.40 or an EIS under 24 CFR 58.36. For types of proposed actions that are categorically excluded from National Environmental Policy Act (NEPA)
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Critical actions as defined in Critical actions Critical actions Allowed if the Allowed if the Sec. 55.2(b)(2). not allowed. not allowed. proposed critical proposed critical action is action is processed under processed under Sec. 55.20 \1\. SEC. 55.20 \1\. {[[Page 400]]} Non-critical actions not Allowed only if Allowed only if Allowed if the Any noncritical excluded under SEC. 55.12 (b) the proposed the proposed proposed action action is allowed or (c). action is a action: (1) Is is processed without functionally either (a) under SEC. processing under dependent use and designed for 55.20 \1\. this part. processed under location in a Sec. 55.20 \1\. coastal high hazard area or (b) a functionally dependent use; and (2) is processed under Sec. 55.20 \1\. -------------------------------------------------------------------------------------------------------------\1\ Or those paragraphs of SEC. 55.20 that are applicable to an action listed in SEC. 55.12(a).
requirements under 24 CFR part 50 (or part 58), compliance with this part shall be completed before the Department's initial (SAMA, conditional, etc.) approval (or the conditional commitment or approval by a grant recipient subject to 24 CFR part 58) of proposed actions in a floodplain. (b) The categorical exclusion of certain proposed actions from environmental review requirements under NEPA and 24 CFR parts 50 and 58 (see 24 CFR 50.20 and 58.35) does not exclude those actions from compliance with this part.
Sec. 55.11 Applicability of subpart C decision making process.
(a) Before reaching the decision points described in SEC. 55.10(a), HUD (for Department-administered programs) or the grant recipient (for HUD financial assistance subject to 24 CFR part 58) shall determine whether Executive Order 11988 and this part apply to the proposed action. (b) If Executive Order 11988 applies, the approval of a proposed action or initial commitment shall be made in accordance with this part. The primary purpose of Executive Order 11988 is to ``avoid direct or indirect support of floodplain development.'' (c) The following table indicates the applicability, by location and type of action, of the decision making process for implementing Executive Order 11988 under subpart C of this part. Table 1 -------------------------------------------------------------------------------------------------------------Type of proposed location Type of proposed action (new reviewable action or an amendment) 100-year Area between 100- and 500year floodplain Floodways Coastal high floodplain outside hazard areas high hazard area --------------------------------------------------------------------------------------------------------------
Sec. 55.12 Inapplicability of 24 CFR part 55 to certain categories of proposed actions.
(a) The decision making steps in SEC. 55.20 (b), (c) and (g) (steps 2, 3 and 7) shall not apply to the following categories of proposed actions: (1) HUD actions involving the disposition of HUD-acquired multifamily housing projects or ``bulk sales'' of HUD-acquired one- to four-family properties in communities that are in the Regular Program of the National Flood Insurance Program (NFIP) and in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24). (2) HUD's actions under section 223(f) of the National Housing Act (12 U.S.C. 1715n(f)) for the purchase or refinancing of existing multifamily housing projects (including hospitals, nursing homes, board and care facilities, and intermediate care
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facilities) in communities that are in good standing under the NFIP. (3) HUD mortgage insurance actions for the repair, rehabilitation, modernization or improvement of existing multifamily housing projects (including nursing homes, board and care facilities and intermediate care facilities) and existing one- to fourfamily properties, in communities that are in the Regular Program of the NFIP and are in good standing, provided that the number of units is not increased more than 20 percent, the action does not involve a conversion from nonresidential to residential land use, and the footprint of the structure and paved areas is not significantly increased. (b) The decision making process in SEC. 55.20 shall not apply to the following categories of proposed actions: (1) HUD's mortgage insurance actions and other financial assistance for the purchasing, mortgaging or refinancing of existing oneto four-family properties in communities that are in the Regular Program of the National Flood Insurance Program (NFIP) and in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24), where the action is not a critical action and the property is not located in a floodway or coastal high hazard area; (2) Financial assistance for minor repairs or improvements on one- to fourfamily properties that do not meet the thresholds for ``substantial improvement'' under SEC. 55.2(b)(8); (3) HUD actions involving the disposition of individual HUDacquired, one- to four-family properties; and (4) HUD guarantees under the Loan Guarantee Recovery Fund Program (24 CFR part 573) of loans that refinance existing loans and mortgages, where any new construction or rehabilitation financed by the existing loan or mortgage has been completed prior to the filing of an application under the program, and the refinancing will not allow further construction or rehabilitation, nor result in
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any physical impacts or changes except for routine maintenance. (c) This part shall not apply to the following categories of proposed HUD actions: (1) HUD-assisted exempt activities described in 24 CFR 58.34; {[[Page 401]]} (2) Policy level actions described at 24 CFR 50.16 that do not involve site-based decisions; (3) HUD's implementation of the full disclosure and other registration requirements of the Interstate Land Sales Disclosure Act (15 U.S.C. 1701--1720); (4) An action involving a repossession, receivership, foreclosure, or similar acquisition of property to protect or enforce HUD's financial interests under previously approved loans, grants, mortgage insurance, or other HUD assistance; (5) A minor amendment to a previously approved action with no additional adverse impact on or from a floodplain; (6) HUD's approval of a project site, an incidental portion of which is situated in an adjacent floodplain, but only if: (i) The proposed construction and landscaping activities (except for minor grubbing, clearing of debris, pruning, sodding, seeding, etc.) do not occupy or modify the 100-year floodplain or the 500-year floodplain (for Critical Actions); (ii) Appropriate provision is made for site drainage; and (iii) A covenant or comparable restriction is placed on the property's continued use to preserve the floodplain; (7) An action for interim assistance, assistance under the section 232(i) Fire Safety Equipment Loan Insurance Program, or emergency activities involving imminent threats to health and safety, and limited to necessary protection, repair or restoration activities to control the imminent risk or damage; (8) HUD's approval of financial assistance for a project on any site in a floodplain for which FEMA has issued: (i) A final Letter of Map Amendment (LOMA) or final Letter of Map Revision
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steps, including public notices and an examination of practicable alternatives. The steps to be followed in the decision making process are: (a) Step 1. Determine whether the proposed action is located in a 100-year floodplain (or a 500-year floodplain for a Critical Action). If the proposed action would not be conducted in one of those locations, then no further compliance with this part is required. (b) Step 2. Notify the public at the earliest possible time of a proposal to consider an action in a floodplain (or in the 500-year floodplain for a Critical Action), and involve the affected and interested public in the decision making process. {[[Page 402]]} (1) The public notices required by paragraphs (b) and (g) of this section may be combined with other project notices wherever appropriate. Notices required under this part must be bilingual if the affected public is largely non-English speaking. In addition, all notices must be published in an appropriate local printed news medium, and must be sent to federal, state, and local public agencies, organizations, and, where not otherwise covered, individuals known to be interested in the proposed action. (2) A minimum of 15 calendar days shall be allowed for comment on the public notice. (3) A notice under this paragraph shall state: the name, proposed location and description of the activity; the total number of acres of floodplain involved; and the HUD official and phone number to contact for information. The notice shall indicate the hours and the HUD office at which a full description of the proposed action may be reviewed. (c) Step 3. Identify and evaluate practicable alternatives to locating the proposed action in a floodplain (or the 500year floodplain for a Critical Action). (1) The consideration of practicable alternatives to the proposed site or method may include:
(LOMR) that removed the property from a FEMA-designated floodplain location; or (ii) A conditional LOMA or conditional LOMR if the HUD approval is subject to the requirements and conditions of the conditional LOMA or conditional LOMR; (9) HUD's acceptance of a housing subdivision approval action by the Department of Veterans Affairs or Farmers Home Administration in accordance with section 535 of the Housing Act of 1949 (42 U.S.C. 1490o); (10) An action that was, on May 23, 1994, already approved by HUD (or a grant recipient subject to 24 CFR part 58) and is being implemented (unless approval is requested for a new reviewable action), provided that SEC. Sec. 55.21 and 55.22 apply where the covered transactions under those sections have not yet occurred, and that any hazard minimization measures required by HUD (or a grant recipient subject to 24 CFR part 58) under its implementation of Executive Order 11988 before May 23, 1994 shall be completed; (11) Issuance or use of Housing Vouchers, Certificates under the Section 8 Existing Housing Program, or other forms of rental subsidy where HUD, the awarding community, or the public housing agency that administers the contract awards rental subsidies that are not projectbased (i.e., do not involve site-specific subsidies); and (12) Secondary mortgage operations of the Government National Mortgage Association (GNMA). [59 FR 19107, Apr. 21, 1994, as amended at 59 FR 33199, June 28, 1994; 62 FR 15802, Apr. 2, 1997]
Subpart C_Procedures for Making Determinations on Floodplain Management
Sec. 55.20 Decision making process.
The decision making process for compliance with this part contains eight
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(i) Locations outside the floodplain (or 500-year floodplain for a Critical Action); (ii) Alternative methods to serve the identical project objective; and (iii) A determination not to approve any action. (2) In reviewing practicable alternatives, the Department or a grant recipient subject to 24 CFR part 58 shall consider feasible technological alternatives, hazard reduction methods and related mitigation costs, and environmental impacts. (d) Step 4. Identify the potential direct and indirect impacts associated with the occupancy or modification of the floodplain (or 500year floodplain for a Critical Action). (e) Step 5. Where practicable, design or modify the proposed action to minimize the potential adverse impacts within the floodplain (including the 500-year floodplain for a Critical Action) and to restore and preserve its natural and beneficial values. All critical actions in the 500-year floodplain shall be designed and built at or above the 100year floodplain (in the case of new construction) and modified to include: (1) Preparation of and participation in an early warning system; (2) An emergency evacuation and relocation plan; (3) Identification of evacuation route(s) out of the 500-year floodplain; and (4) Identification marks of past or estimated flood levels on all structures. (f) Step 6. Reevaluate the proposed action to determine: (1) Whether it is still practicable in light of its exposure to flood hazards in the floodplain, the extent to which it will aggravate the current hazards to other floodplains, and its potential to disrupt floodplain values; and (2) Whether alternatives preliminarily rejected at Step 3 (paragraph (c)) of this section are practicable in light of the information gained in Steps 4 and 5 (paragraphs (d) and (e)) of this section. (g) Step 7. (1) If the reevaluation results in a determination that there is no
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practicable alternative to locating the proposal in the floodplain (or the 500-year floodplain for a Critical Action), publish a final notice that includes: (i) The reasons why the proposal must be located in the floodplain; (ii) A list of the alternatives considered; and (iii) All mitigation measures to be taken to minimize adverse impacts and to restore and preserve natural and beneficial values. (2) In addition, the public notice procedures of SEC. 55.20(b)(1) shall be followed, and a minimum of 7 calendar days for public comment before approval of the proposed action shall be provided. (h) Step 8. Upon completion of the decision making process in Steps 1 through 7, implement the proposed action. There is a continuing responsibility to ensure that the mitigating measures identified in Step 7 are implemented. {[[Page 403]]}
Sec. 55.21 Notification of floodplain hazard.
For HUD programs under which a financial transaction for a property located in a floodplain (a 500-year floodplain for a Critical Action) is guaranteed, approved, regulated or insured, any private party participating in the transaction and any current or prospective tenant shall be informed by HUD (or by HUD's designee, e.g., a mortgagor) or a grant recipient subject to 24 CFR part 58 of the hazards of the floodplain location before the execution of documents completing the transaction.
Sec. 55.22 Conveyance restrictions for the disposition of multifamily real property.
(a) In the disposition (including leasing) of multifamily properties acquired by HUD that are located in a floodplain (a 500-year floodplain for a Critical Action), the documents used for the conveyance must: (1) Refer to those uses that are restricted under identified federal, state, or local floodplain regulations; and
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areawide compliances, the area for examination may include a sector of, or the entire, floodplain--as relevant to the proposed or anticipated actions. The areawide compliance process shall be in accord with the decision making process under SEC. 55.20. (b) The areawide compliance process shall address the relevant executive orders and shall consider local land use planning and development controls (e.g., those enforced by the community for purposes of floodplain management under the National Flood Insurance Program (NFIP)) and applicable state programs for floodplain management. The process shall include the development and publication of a strategy that identifies the range of development and mitigation measures under which the proposed HUD assistance may be approved and that indicates the types of actions that will not be approved in the floodplain. (c) Individual actions that fit within the types of proposed HUD actions specifically addressed under the areawide compliance do not require further compliance with SEC. 55.20 except that a determination by the Department or a grant recipient subject to 24 CFR part 58 shall be made concerning whether the individual action accords with the areawide strategy. Where the individual action does not accord with the {[[Page 404]]} areawide strategy, specific development and mitigation measures shall be prescribed as a condition of HUD's approval of the individual action. (d) Areawide compliance under the procedures of this section is subject to the following provisions: (1) It shall be initiated by HUD through a formal agreement of understanding with affected local governments concerning mutual responsibilities governing the preparation, issuance, implementation, and enforcement of the areawide strategy; (2) It may be performed jointly with one or more Federal departments or agencies, or grant recipients subject to 24 CFR part 58 that serve as the responsible Federal official;
(2) Include any land use restrictions limiting the use of the property by a grantee or purchaser and any successors under state or local laws. (b)(1) For disposition of multifamily properties acquired by HUD that are located in a 500-year floodplain and contain Critical Actions, HUD shall, as a condition of approval of the disposition, require by covenant or comparable restriction on the property's use that the property owner and successive owners provide written notification to each current and prospective tenant concerning: (i) The hazards to life and to property for those persons who reside or work in a structure located within the 500-year floodplain, and (ii) The availability of flood insurance on the contents of their dwelling unit or business. (2) The notice shall also be posted in the building so that it will be legible at all times and easily visible to all persons entering or using the building. [59 FR 19107, Apr. 21, 1994, as amended at 59 FR 33199, June 28, 1994]
Sec. 55.23 [Reserved] Sec. 55.24 Aggregation.
Where two or more actions have been proposed, require compliance with subpart C of this part, affect the same floodplain, and are currently under review by the Department (or by a grant recipient subject to 24 CFR part 58), individual or aggregated approvals may be issued. A single compliance review and approval under this section is subject to compliance with the decision making process in SEC. 55.20.
Sec. 55.25 Areawide compliance.
(a) A HUD-approved areawide compliance process may be substituted for individual compliance or aggregated compliance under SEC. 55.24 where a series of individual actions is proposed or contemplated in a pertinent area for HUD's examination of floodplain hazards. In
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(3) It shall establish mechanisms to ensure that: (i) The terms of approval of individual actions (e.g., concerning structures and facilities) will be consistent with the areawide strategy; (ii) The controls set forth in the areawide strategy are implemented and enforced in a timely manner; and (iii) Where necessary, mitigation for individual actions will be established as a condition of approval. (4) An open scoping process (in accordance with 40 CFR 1501.7) shall be used for determining the scope of issues to be addressed and for identifying significant issues related to housing and community development for the floodplain; (5) Federal, state and local agencies with expertise in floodplain management, flood evacuation preparedness, land use planning and building regulation, or soil and natural resource conservation shall be invited to participate in the scoping process and to provide advice and comments; and (6) Eligibility for participation in and the use of the areawide compliance must be limited to communities that are in the Regular Program of the National Flood Insurance Program and in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24), thereby demonstrating a capacity for and commitment to floodplain management standards sufficient to perform responsibilities under this part. (7) An expiration date (not to exceed ten years from the date of the formal adoption by the local governments) for HUD approval of areawide compliance under this part must be stated in the agreement between the local governments and HUD. In conjunction with the setting of an expiration date, a mechanism for HUD's reevaluation of the appropriateness of areawide compliance must be provided in the agreement.
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Sec. 55.26 Adoption of another agency's review under the executive orders.
If a proposed action covered under this part is already covered in a prior review performed under the executive order by another agency, that review may be adopted by HUD or by a grant recipient authorized under 24 CFR part 58, provided that: (a) There is no pending litigation relating to the other agency's review for floodplain management; (b) The adopting agency makes a finding that: (1) The type of action currently proposed is comparable to the type of action previously reviewed by the other agency; and (2) There has been no material change in circumstances since the previous review was conducted; and (c) As a condition of approval, mitigation measures similar to those prescribed in the previous review shall be required of the current proposed action.
Sec. 55.27 Documentation.
(a) For purposes of compliance with SEC. 55.20, the responsible HUD official who would approve the proposed action (or the Certifying Officer for a grant recipient subject to 24 CFR part 58) shall require that the following actions be documented: (1) Under SEC. 55.20(c), practicable alternative sites have been considered outside the floodplain, but within the local housing market area, the local public utility service area, or the jurisdictional boundaries of a recipient unit of general local government (as defined in 24 CFR 570.3), whichever geographic area is more appropriate to the proposed HUD action. Actual sites under review must be identified and the reasons for the nonselection of those sites as practicable alternatives must be described; and {[[Page 405]]} (2) Under SEC. 55.20(e), measures to minimize the potential adverse impacts of
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the proposed action on the affected floodplain as identified in SEC. 55.20(d) have been applied to the design for the proposed action. (b) For purposes of compliance with SEC. 55.24, SEC. 55.25, or SEC. 55.26 (as appropriate), the responsible HUD official (or the Certifying Officer for a grant recipient subject to 24 CFR part 58) who would approve the proposed action shall require documentation of compliance with the required conditions. (c) Documentation of compliance with this part (including copies of public notices) must be attached to the environmental assessment, the environmental impact statement or the compliance record and be maintained as a part of the project file. In addition, for environmental impact statements, documentation of compliance with this part must be included as a part of the record of decision (or environmental review record for grant recipients subject to 24 CFR part 58).
24 CFR 58 Environmental Review Procedures
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 405-424] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58_ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES Subpart A_Purpose, Legal Authority, Federal Laws and Authorities 58.1 Purpose and applicability. 58.2 Terms, abbreviations and definitions. 58.4 Assumption authority. 58.5 Related Federal laws and authorities. 58.6 Other requirements. Subpart B_General Policy: Responsibilities of Responsible Entities 58.10 Basic environmental responsibility. 58.11 Legal capacity and performance. 58.12 Technical and administrative capacity. 58.13 Responsibilities of the certifying officer. 58.14 Interaction with State, Federal and non-Federal entities. 58.15 Tiering. 58.17 [Reserved] 58.18 Responsibilities of States assuming HUD environmental responsibilities. Subpart C_General Policy: Environmental Review Procedures 58.21 Time periods. 58.22 Limitations on activities pending clearance.
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58.23 Financial assistance for environmental review. Subpart D_Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 58.30 Environmental review process. 58.32 Project aggregation. 58.33 Emergencies. 58.34 Exempt activities. 58.35 Categorical exclusions. 58.36 Environmental assessments. 58.37 Environmental impact statement determinations. 58.38 Environmental review record. Subpart E_Environmental Review Process: Environmental Assessments (EA's) 58.40 Preparing the environmental assessment. 58.43 Dissemination and/or publication of the findings of no significant impact. 58.45 Public comment periods. 58.46 Time delays for exceptional circumstances. 58.47 Re-evaluation of environmental assessments and other environmental findings. Subpart F_Environmental Review Process: Environmental Impact Statement Determinations 58.52 Adoption of other agencies' EISs. 58.53 Use of prior environmental impact statements. Subpart G_Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements 58.55 Notice of intent to prepare an EIS. 58.56 Scoping process. 58.57 Lead agency designation. 58.59 Public hearings and meetings. 58.60 Preparation and filing of environmental impact statements. Subpart H_Release of Funds for Particular Projects
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58.70 Notice of intent to request release of funds. 58.71 Request for release of funds and certification. 58.72 HUD or State actions on RROFs and certifications. 58.73 Objections to release of funds. {[[Page 406]]} 58.74 Time for objecting. 58.75 Permissible bases for objections. 58.76 Procedure for objections. 58.77 Effect of approval of certification. Authority: 12 U.S.C. 1707 note, 1715z13a(k); 25 U.S.C. 4115 and 4226; 42 U.S.C. 1437x, 3535(d), 3547, 4332, 4852, 5304(g), 11402, 12838, and 12905(h); title II of Pub. L. 105-276; E.O. 11514 as amended by E.O 11991, 3 CFR 1977 Comp., p. 123. Source: 61 FR 19122, Apr. 30, 1996, unless otherwise noted.
Subpart A_Purpose, Legal Authority, Federal Laws and Authorities
Sec. 58.1 Purpose and applicability.
(a) Purpose. This part provides instructions and guidance to recipients of HUD assistance and other responsible entities for conducting an environmental review for a particular project or activity and for obtaining approval of a Request for Release of Funds. (b) Applicability. This part applies to activities and projects where specific statutory authority exists for recipients or other responsible entities to assume environmental responsibilities. Programs and activities subject to this part include: (1) Community Development Block Grant programs authorized by Title I of the Housing and Community Development Act of 1974, in accordance with section 104(g) (42 U.S.C. 5304(g)); (2) [Reserved]
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(ii) Grants for the revitalization of severely distressed public housing (HOPE VI) for Fiscal Year 1999 and prior years, in accordance with Title II of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999 (Pub. L. 105-276, approved October 21, 1998); and (iii) Assistance administered by a public housing agency under section 8 of the United States Housing Act of 1937, except for assistance provided under part 886 of this title, in accordance with section 26 (42 U.S.C. 1437x); (7) Special Projects appropriated under an appropriation act for HUD, such as special projects under the heading ``Annual Contributions for Assisted Housing'' in Title II of various Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Acts, in accordance with section 305(c) of the Multifamily Housing Property Disposition Reform Act of 1994 (42 U.S.C. 3547); {[[Page 407]]} (8) The FHA Multifamily Housing Finance Agency Pilot Program under section 542(c) of the Housing and Community Development Act of 1992, in accordance with section 542(c)(9)(12 U.S.C. 1707 note); (9) The Self-Help Homeownership Opportunity Program under section 11 of the Housing Opportunity Program Extension Act of 1996 (Pub. L. 104120, 110 Stat. 834), in accordance with section 11(m)); (10) Assistance provided under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA), in accordance with: (i) Section 105 for Indian Housing Block Grants and Federal Guarantees or Financing for Tribal Housing Authorities (25 U.S.C. 4115 and 4226); and (ii) Section 806 for Native Hawaiian Housing Block Grants (25 U.S.C. 4226); (11) Indian Housing Loan Guarantees authorized by section 184 of the Housing and Community Development Act of 1992, in accordance with section 184(k) (12 U.S.C. 1715z-13a(k)); and
(3)(i) Grants to states and units of general local government under the Emergency Shelter Grant Program, Supportive Housing Program (and its predecessors, the Supportive Housing Demonstration Program (both Transitional Housing and Permanent Housing for Homeless Persons with Disabilities) and Supplemental Assistance for Facilities to Assist the Homeless), Shelter Plus Care Program, Safe Havens for Homeless Individuals Demonstration Program, and Rural Homeless Housing Assistance, authorized by Title IV of the McKinneyVento Homeless Assistance Act, in accordance with section 443 (42 U.S.C. 11402); (ii) Grants beginning with Fiscal Year 2001 to private non-profit organizations and housing agencies under the Supportive Housing Program and Shelter Plus Care Program authorized by Title IV of the McKinneyVento Homeless Assistance Act, in accordance with section 443 (42 U.S.C. 11402); (4) The HOME Investment Partnerships Program authorized by Title II of the Cranston-Gonzalez National Affordable Housing Act (NAHA), in accordance with section 288 (42 U.S.C. 12838); (5) Grants to States and units of general local government for abatement of leadbased paint and lead dust hazards pursuant to Title II of the Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act, 1992, and grants for leadbased paint hazard reduction under section 1011 of the Housing and Community Development Act of 1992, in accordance with section 1011(o) (42 U.S.C. 4852(o)); (6)(i) Public Housing Programs under Title I of the United States Housing Act of 1937, including HOPE VI grants authorized under section 24 of the Act for Fiscal Year 2000 and later, in accordance with section 26 (42 U.S.C. 1437x);
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(12) Grants for Housing Opportunities for Persons with AIDS (HOPWA) under the AIDS Housing Opportunity Act, as follows: competitive grants beginning with Fiscal Year 2001 and all formula grants, in accordance with section 856(h) (42 U.S.C. 12905(h)); all grants for Fiscal Year 1999 and prior years, in accordance with section 207(c) of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999 (Pub. L. 105-276, approved October 21, 1998). (c) When HUD assistance is used to help fund a revolving loan fund that is administered by a recipient or another party, the activities initially receiving assistance from the fund are subject to the requirements in this part. Future activities receiving assistance from the revolving loan fund, after the fund has received loan repayments, are subject to the environmental review requirements if the rules of the HUD program that initially provided assistance to the fund continue to treat the activities as subject to the Federal requirements. If the HUD program treats the activities as not being subject to any Federal requirements, then the activities cease to become Federally-funded activities and the provisions of this part do not apply. (d) To the extent permitted by applicable laws and the applicable regulations of the Council on Environmental Quality, the Assistant Secretary for Community Planning and Development may, for good cause and with appropriate conditions, approve waivers and exceptions or establish criteria for exceptions from the requirements of this part. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56127, Sept. 29, 2003]
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Sec. 58.2 Terms, abbreviations and definitions.
(a) For the purposes of this part, the following definitions supplement the uniform terminology provided in 40 CFR part 1508:
(1) Activity means an action that a grantee or recipient puts forth as part of an assisted project, regardless of whether its cost is to be borne by the HUD assistance or is an eligible expense under the HUD assistance program. (2) Certifying Officer means the official who is authorized to execute the Request for Release of Funds and Certification and has the legal capacity to carry out the responsibilities of SEC. 58.13. (3) Extraordinary Circumstances means a situation in which an environmental assessment (EA) or environmental impact statement (EIS) is not normally required, but due to unusual conditions, an EA or EIS is appropriate. Indicators of unusual conditions are: (i) Actions that are unique or without precedent; (ii) Actions that are substantially similar to those that normally require an EIS; (iii) Actions that are likely to alter existing HUD policy or HUD mandates; or (iv) Actions that, due to unusual physical conditions on the site or in the vicinity, have the potential for a significant impact on the environment or in which the environment could have a significant impact on users of the facility. (4) Project means an activity, or a group of integrally related activities, {[[Page 408]]} designed by the recipient to accomplish, in whole or in part, a specific objective. (5) Recipient means any of the following entities, when they are eligible recipients or grantees under a program listed in SEC. 58.1(b): (i) A State that does not distribute HUD assistance under the program to a unit of general local government; (ii) Guam, the Northern Mariana Islands, the Virgin Islands, American Samoa, and Palau; (iii) A unit of general local government; (iv) An Indian tribe;
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Department of Hawaiian Home Lands, when it is the recipient under the program. Under the Native American Housing Assistance and SelfDetermination Act of 1996 (25 U.S.C. 4101 et seq.) listed in SEC. 58.1(b)(10)(i), the Indian tribe is the responsible entity whether or not a Tribally Designated Housing Entity is authorized to receive grant amounts on behalf of the tribe. The Indian tribe is also the responsible entity under the Section 184 Indian Housing Loan Guarantee program listed in SEC. 58.1(b)(11). Regional Corporations in Alaska are considered Indian tribes in this part. Nonrecipient responsible entities are designated as follows: (A) For qualified housing finance agencies, the State or a unit of general local government, Indian tribe or Alaska native village whose jurisdiction contains the project site; (B) For public housing agencies, the unit of general local government within which the project is located that exercises land use responsibility, or if HUD determines this infeasible, the county, or if HUD determines this infeasible, the State; (C) For non-profit organizations and other entities, the unit of general local government, Indian tribe or Alaska native village within which the project is located that exercises land use responsibility, or if HUD determines this infeasible, the county, or if HUD determines this infeasible, the State; (8) Unit Density refers to a change in the number of dwelling units. Where a threshold is identified as a percentage change in density that triggers review requirements, no distinction is made between an increase or a decrease in density. (9) Tiering means the evaluation of an action or an activity at various points {[[Page 409]]} in the development process as a proposal or event becomes ripe for an Environment Assessment or Review. (10) Vacant Building means a habitable structure that has been vacant for more than one year.
(v) With respect to Public Housing Programs under SEC. 58.1(b)(6)(i), fiscal year 1999 and prior HOPE VI grants under SEC. 58.1(b)(6)(ii) or Section 8 assistance under SEC. 58.1(b)(6)(iii), a public housing agency; (vi) Any direct grantee of HUD for a special project under SEC. 58.1(b)(7); (vii) With respect to the FHA Multifamily Housing Finance Agency Program under 58.1(b)(8), a qualified housing finance agency; (viii) With respect to the Self-Help Homeownership Opportunity Program under SEC. 58.1(b)(9), any direct grantee of HUD. (ix)(A) With respect to NAHASDA assistance under SEC. 58.1(b)(10), the Indian tribe or the Department of Hawaiian Home Lands; and (B) With respect to the Section 184 Indian Housing Loan Guarantee program under SEC. 58.1(b)(11), the Indian tribe. (x) With respect to the Shelter Plus Care and Supportive Housing Programs under SEC. 58.1(b)(3)(ii), nonprofit organizations and other entities. (6) Release of funds. In the case of the FHA Multifamily Housing Finance Agency Program under SEC. 58.1(b)(8), Release of Funds, as used in this part, refers to HUD issuance of a firm approval letter, and Request for Release of Funds refers to a recipient's request for a firm approval letter. In the case of the Section 184 Indian Housing Loan Guarantee program under SEC. 58.1(b)(11), Release of Funds refers to HUD's issuance of a commitment to guarantee a loan, or if there is no commitment, HUD's issuance of a certificate of guarantee. (7) Responsible Entity. Responsible Entity means: (i) With respect to environmental responsibilities under programs listed in SEC. 58.1(b)(1), (2), (3)(i), (4), and (5), a recipient under the program. (ii) With respect to environmental responsibilities under the programs listed in SEC. 58.1(b)(3)(ii) and (6) through (12), a state, unit of general local government, Indian tribe or Alaska Native Village, or the
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(b) The following abbreviations are used throughout this part: (1) CDBG--Community Development Block Grant; (2) CEQ--Council on Environmental Quality; (3) EA--Environmental Assessment; (4) EIS--Environmental Impact Statement; (5) EPA--Environmental Protection Agency; (6) ERR--Environmental Review Record; (7) FONSI--Finding of No Significant Impact; (8) HUD--Department of Housing and Urban Development; (9) NAHA--Cranston-Gonzalez National Affordable Housing Act of 1990; (10) NEPA--National Environmental Policy Act of 1969, as amended; (11) NOI/EIS--Notice of Intent to Prepare an EIS; (12) NOI/RROF--Notice of Intent to Request Release of Funds; (13) ROD--Record of Decision; (14) ROF--Release of Funds; and (15) RROF--Request for Release of Funds. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56128, Sept. 29, 2003]
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Sec. 58.4 Assumption authority.
(a) Assumption authority for responsible entities: General. Responsible entities shall assume the responsibility for environmental review, decision-making, and action that would otherwise apply to HUD under NEPA and other provisions of law that further the purposes of NEPA, as specified in SEC. 58.5. Responsible entities that receive assistance directly from HUD assume these responsibilities by execution of a grant agreement with HUD and/or a legally binding document such as the certification contained on HUD Form 7015.15, certifying to the assumption of environmental responsibilities. When a State distributes funds to a responsible entity, the State must provide for appropriate
procedures by which these responsible entities will evidence their assumption of environmental responsibilities. (b) Particular responsibilities of the States. (1) States are recipients for purposes of directly undertaking a State project and must assume the environmental review responsibilities for the State's activities and those of any non-governmental entity that may participate in the project. In this case, the State must submit the certification and RROF to HUD for approval. (2) States must exercise HUD's responsibilities in accordance with SEC. 58.18, with respect to approval of a unit of local government's environmental certification and RROF for a HUD assisted project funded through the state. Approval by the state of a unit of local government's certification and RROF satisfies the Secretary's responsibilities under NEPA and the related laws cited in SEC. 58.5. (c) Particular responsibilities of Indian tribes. An Indian tribe may, but is not required to, assume responsibilities for environmental review, decision-making and action for programs authorized by the Native American Housing Assistance and SelfDetermination Act of 1996 (25 U.S.C. 4101 et seq.) (other than title VIII) or section 184 of the Housing and Community Development Act of 1992 (12 U.S.C. 1715z13a). The tribe must make a separate decision regarding assumption of responsibilities for each of these Acts and communicate that decision in writing to HUD. If the tribe assumes these responsibilities, the requirements of this part shall apply. If a tribe formally declines assumption of these responsibilities, they are retained by HUD and the provisions of part 50 of this title apply. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56128, Sept. 29, 2003]
Sec. 58.5 Related Federal laws and authorities.
In accordance with the provisions of law cited in SEC. 58.1(b), the responsible entity must assume responsibilities for
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(d) Sole source aquifers. (1) The Safe Drinking Water Act of 1974 (42 U.S.C. 201, 300(f) et seq., and 21 U.S.C. 349) as amended; particularly section 1424(e)(42 U.S.C. 300h-3(e)). (2) Sole Source Aquifers (Environmental Protection Agency--40 CFR part 149). (e) Endangered species. The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) as amended, particularly section 7 (16 U.S.C. 1536). (f) Wild and scenic rivers. The Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.) as amended, particularly section 7(b) and (c) (16 U.S.C. 1278(b) and (c)). (g) Air quality. (1) The Clean Air Act (42 U.S.C. 7401 et. seq.) as amended; particularly section 176(c) and (d) (42 U.S.C. 7506(c) and (d)). (2) Determining Conformity of Federal Actions to State or Federal Implementation Plans (Environmental Protection Agency-40 CFR parts 6, 51, and 93). (h) Farmlands protection. (1) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201 et seq.) particularly sections 1540(b) and 1541 (7 U.S.C. 4201(b) and 4202). (2) Farmland Protection Policy (Department of Agriculture--7 CFR part 658). (i) HUD environmental standards. (1) Applicable criteria and standards specified in part 51 of this title, other than the runway clear zone notification requirement in SEC. 51.303(a)(3). (2)(i) Also, it is HUD policy that all properties that are being proposed for use in HUD programs be free of hazardous materials, contamination, toxic chemicals and gases, and radioactive substances, where a hazard could affect the health and safety of occupants or conflict with the intended utilization of the property. (ii) The environmental review of multifamily housing with five or more dwelling units (including leasing), or nonresidential property, must include the evaluation of previous uses of the site or other evidence of contamination on or near
environmental review, decision-making and action that would apply to HUD under the following specified laws and authorities. The responsible entity must certify that it has complied with the requirements that would apply to HUD under these laws and authorities {[[Page 410]]} and must consider the criteria, standards, policies and regulations of these laws and authorities. (a) Historic properties. (1) The National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.), particularly sections 106 and 110 (16 U.S.C. 470 and 470h-2). (2) Executive Order 11593, Protection and Enhancement of the Cultural Environment, May 13, 1971 (36 FR 8921), 3 CFR 1971-1975 Comp., p. 559, particularly section 2(c). (3) Federal historic preservation regulations as follows: (i) 36 CFR part 800 with respect to HUD programs other than Urban Development Action Grants (UDAG); and (ii) 36 CFR part 801 with respect to UDAG. (4) The Reservoir Salvage Act of 1960 as amended by the Archeological and Historic Preservation Act of 1974 (16 U.S.C. 469 et seq.), particularly section 3 (16 U.S.C. 469a-1). (b) Floodplain management and wetland protection. (1) Executive Order 11988, Floodplain Management, May 24, 1977 (42 FR 26951), 3 CFR, 1977 Comp., p. 117, as interpreted in HUD regulations at 24 CFR part 55, particularly section 2(a) of the order (For an explanation of the relationship between the decision-making process in 24 CFR part 55 and this part, see SEC. 55.10 of this subtitle A.) (2) Executive Order 11990, Protection of Wetlands, May 24, 1977 (42 FR 26961), 3 CFR, 1977 Comp., p. 121, particularly sections 2 and 5. (c) Coastal Zone Management. The Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.), as amended, particularly section 307(c) and (d) (16 U.S.C. 1456(c) and (d)).
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the site, to ensure that the occupants of proposed sites are not adversely affected by any of the hazards listed in paragraph (i)(2)(i) of this section. (iii) Particular attention should be given to any proposed site on or in the general proximity of such areas as dumps, landfills, industrial sites, or other locations that contain, or may have contained, hazardous wastes. (iv) The responsible entity shall use current techniques by qualified professionals to undertake investigations determined necessary. {[[Page 411]]} (j) Environmental justice. Executive Order 12898--Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, February 11, 1994 (59 FR 7629), 3 CFR, 1994 Comp. p. 859. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56128, Sept. 29, 2003]
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Sec. 58.6 Other requirements.
In addition to the duties under the laws and authorities specified in SEC. 58.5 for assumption by the responsible entity under the laws cited in SEC. 58.1(b), the responsible entity must comply with the following requirements. Applicability of the following requirements does not trigger the certification and release of funds procedure under this part or preclude exemption of an activity under SEC. 58.34(a)(12) and/ or the applicability of SEC. 58.35(b). However, the responsible entity remains responsible for addressing the following requirements in its ERR and meeting these requirements, where applicable, regardless of whether the activity is exempt under SEC. 58.34 or categorically excluded under SEC. 58.35(a) or (b). (a)(1) Under the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4001-4128), Federal financial assistance for acquisition and construction purposes (including rehabilitation) may not be used in an area identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards, unless:
(i) The community in which the area is situated is participating in the National Flood Insurance Program (see 44 CFR parts 59 through 79), or less than one year has passed since the FEMA notification regarding such hazards; and (ii) Where the community is participating in the National Flood Insurance Program, flood insurance protection is to be obtained as a condition of the approval of financial assistance to the property owner. (2) Where the community is participating in the National Flood Insurance Program and the recipient provides financial assistance for acquisition or construction purposes (including rehabilitation) for property located in an area identified by FEMA as having special flood hazards, the responsible entity is responsible for assuring that flood insurance under the National Flood Insurance Program is obtained and maintained. (3) Paragraph (a) of this section does not apply to Federal formula grants made to a State. (b) Under section 582 of the National Flood Insurance Reform Act of 1994, 42 U.S.C. 5154a, HUD disaster assistance that is made available in a special flood hazard area may not be used to make a payment (including any loan assistance payment) to a person for repair, replacement or restoration for flood damage to any personal, residential or commercial property if: (1) The person had previously received Federal flood disaster assistance conditioned on obtaining and maintaining flood insurance; and (2) The person failed to obtain and maintain flood insurance. (c) Pursuant to the Coastal Barrier Resources Act, as amended by the Coastal Barrier Improvement Act of 1990 (16 U.S.C. 3501), HUD assistance may not be used for most activities proposed in the Coastal Barrier Resources System. (d) In all cases involving HUD assistance, subsidy, or insurance for the purchase or sale of an existing property in a Runway Clear Zone or Clear Zone, as defined in 24 CFR part 51, the responsible
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objectives, HUD will review the facts to determine who will perform the environmental review. (c) At any time, HUD may reject the use of a responsible entity to conduct the environmental review in a particular case on the basis of performance, timing or compatibility of objectives, or in accordance with SEC. 58.77(d)(1). (d) If a responsible entity, other than a recipient, objects to performing an environmental review, or if HUD determines that the responsible entity should not perform the environmental review, HUD may designate another responsible entity to conduct the review in accordance with this part or may itself conduct the environmental review in accordance with the provisions of 24 CFR part 50. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56129, Sept. 29, 2003]
entity shall advise the buyer that the property is in a runway clear zone or clear zone, what the implications of such a location are, and that there is a possibility that the property may, at a later date, be acquired by the airport operator. The buyer must sign a statement acknowledging receipt of this information. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15271, Mar. 30, 1998]
Subpart B_General Policy: Responsibilities of Responsible Entities
Sec. 58.10 Basic environmental responsibility.
In accordance with the provisions of law cited in SEC. 58.1(b), except as otherwise provided in SEC. 58.4(c), the responsible entity must assume the environmental responsibilities for projects {[[Page 412]]} under programs cited in SEC. 58.1(b). In doing so, the responsible entity must comply with the provisions of NEPA and the CEQ regulations contained in 40 CFR parts 1500 through 1508, including the requirements set forth in this part. [68 FR 56128, Sept. 29, 2003]
Sec. 58.12 Technical and administrative capacity.
The responsible entity must develop the technical and administrative capability necessary to comply with 40 CFR parts 1500 through 1508 and the requirements of this part.
Sec. 58.11 Legal capacity and performance.
(a) A responsible entity which believes that it does not have the legal capacity to carry out the environmental responsibilities required by this part must contact the appropriate local HUD Office or the State for further instructions. Determinations of legal capacity will be made on a case-bycase basis. (b) If a public housing, special project, HOPWA, Supportive Housing, Shelter Plus Care, or Self-Help Homeownership Opportunity recipient that is not a responsible entity objects to the nonrecipient responsible entity conducting the environmental review on the basis of performance, timing, or compatibility of
Sec. 58.13 Responsibilities of the certifying officer.
Under the terms of the certification required by SEC. 58.71, a responsible entity's certifying officer is the ``responsible Federal official'' as that term is used in section 102 of NEPA and in statutory provisions cited in SEC. 58.1(b). The Certifying Officer is therefore responsible for all the requirements of section 102 of NEPA and the related provisions in 40 CFR parts 1500 through 1508, and 24 CFR part 58, including the related Federal authorities listed in SEC. 58.5. The Certifying Officer must also: (a) Represent the responsible entity and be subject to the jurisdiction of the Federal courts. The Certifying Officer will not be represented by the Department of Justice in court; and
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(b) Ensure that the responsible entity reviews and comments on all EISs prepared for Federal projects that may have an impact on the recipient's program.
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Sec. 58.14 Interaction with State, Federal and non-Federal entities.
A responsible entity shall consult with appropriate environmental agencies, State, Federal and non-Federal entities and the public in the preparation of an EIS, EA or other environmental reviews undertaken under the related laws and authorities cited in SEC. 58.5 and SEC. 58.6. The responsible entity must also cooperate with other agencies to reduce duplication between NEPA and comparable environmental review requirements of the State (see 40 CFR 1506.2 (b) and (c)). The responsible entity must prepare its EAs and EISs so that they comply with the environmental review requirements of both Federal and State laws unless otherwise specified or provided by law. State, Federal and local agencies may participate or act in a joint lead or cooperating agency capacity in the preparation of joint EISs or joint environmental assessments (see 40 CFR 1501.5(b) and 1501.6). A single EIS or EA may be prepared and adopted by multiple users to the extent that the review addresses the relevant environmental issues and there is a written agreement between the cooperating {[[Page 413]]} agencies which sets forth the coordinated and overall responsibilities. [63 FR 15271, Mar 30, 1998]
date. The site specific review need only reference or summarize the issues addressed in the broader review. The broader review should identify and evaluate those issues ripe for decision and exclude those issues not relevant to the policy, program or project under consideration. The broader review should also establish the policy, standard or process to be followed in the site specific review. The Finding of No Significant Impact (FONSI) with respect to the broader assessment shall include a summary of the assessment and identify the significant issues to be considered in site specific reviews. Subsequent site-specific reviews will not require notices or a Request for Release of Funds unless the Certifying Officer determines that there are unanticipated impacts or impacts not adequately addressed in the prior review. A tiering approach can be used for meeting environmental review requirements in areas designated for special focus in local Consolidated Plans. Local and State Governments are encouraged to use the Consolidated Plan process to facilitate environmental reviews.
Sec. 58.17 [Reserved] Sec. 58.18 Responsibilities of States assuming HUD environmental responsibilities.
States that elect to administer a HUD program shall ensure that the program complies with the provisions of this part. The state must: (a) Designate the state agency or agencies that will be responsible for carrying out the requirements and administrative responsibilities set forth in subpart H of this part and which will: (1) Develop a monitoring and enforcement program for post-review actions on environmental reviews and monitor compliance with any environmental conditions included in the award. (2) Receive public notices, RROFs, and certifications from recipients pursuant to SEC. Sec. 58.70 and 58.71; accept
Sec. 58.15 Tiering.
Responsible entities may tier their environmental reviews and assessments to eliminate repetitive discussions of the same issues at subsequent levels of review. Tiering is appropriate when there is a requirement to evaluate a policy or proposal in the early stages of development or when site-specific analysis or mitigation is not currently feasible and a more narrow or focused analysis is better done at a later
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determination as required in SEC. 58.34(b) and SEC. 58.35(d), but the recipient must comply with applicable requirements under SEC. 58.6. (c) If a recipient is considering an application from a prospective subrecipient or beneficiary and is aware that the prospective subrecipient or beneficiary is about to take an action within the jurisdiction of the recipient that is prohibited by paragraph (a) of this section, then the recipient will take appropriate action to ensure that the objectives and procedures of NEPA are achieved. (d) An option agreement on a proposed site or property is allowable prior to the completion of the environmental review if the option agreement is subject to a determination by the recipient on the desirability of the property for the project as a result of the completion of the environmental review in accordance with this part and the cost of the option is a nominal portion of the purchase price. There is no constraint on the purchase of an option by third parties that have not been selected for HUD funding, have no responsibility for the environmental review and have no say in the approval or disapproval of the project. (e) Self-Help Homeownership Opportunity Program (SHOP). In accordance with section 11(d)(2)(A) of the Housing Opportunity Program Extension Act of 1996 (42 U.S.C. 12805 note), an organization, consortium, or affiliate receiving assistance under the SHOP program may advance nongrant funds to acquire land prior to completion of an environmental review and approval of a Request for Release of Funds (RROF) and certification, notwithstanding paragraph (a) of this section. Any advances to acquire land prior to approval of the RROF and certification are made at the risk of the organization, consortium, or affiliate and reimbursement for such advances may depend on the result of the environmental review. This authorization is limited to the SHOP program only and all other forms of HUD assistance are subject to the limitations in paragraph (a) of this section.
objections from the public and from other agencies (SEC. 58.73); and perform other related responsibilities regarding releases of funds. (b) Fulfill the state role in subpart H relative to the time period set for the receipt and disposition of comments, objections and appeals (if any) on particular projects. [68 FR 56129, Sept. 29, 2003]
Subpart C_General Policy: Environmental Review Procedures
Sec. 58.21 Time periods.
All time periods in this part shall be counted in calendar days. The first day of a time period begins at 12:01 a.m. local time on the day following the publication or the mailing and posting date of the notice which initiates the time period.
Sec. 58.22 Limitations on activities pending clearance.
(a) Neither a recipient nor any participant in the development process, including public or private nonprofit or forprofit entities, or any of their contractors, may commit HUD assistance under a program listed in SEC. 58.1(b) on an activity or project until HUD or the state has approved the recipient's RROF and the related certification from the responsible entity. In addition, until the RROF and the related certification have been approved, neither a recipient nor any participant in the development process may commit non-HUD funds on or undertake an activity or project under a program listed in SEC. 58.1(b) if the activity or project would have an adverse environmental impact or limit the choice of reasonable alternatives. {[[Page 414]]} (b) If a project or activity is exempt under SEC. 58.34, or is categorically excluded (except in extraordinary circumstances) under SEC. 58.35(b), no RROF is required and the recipient may undertake the activity immediately after the responsible entity has documented its
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(f) Relocation. Funds may be committed for relocation assistance before the approval of the RROF and related certification for the project provided that the relocation assistance is required by 24 CFR part 42. [68 FR 56129, Sept. 29, 2003]
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Sec. 58.23 Financial assistance for environmental review.
The costs of environmental reviews, including costs incurred in complying with any of the related laws and authorities cited in SEC. 58.5 and SEC. 58.6, are eligible costs to the extent allowable under the HUD assistance program regulations.
Subpart D_Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification
Sec. 58.30 Environmental review process.
(a) The environmental review process consists of all the actions that a responsible entity must take to determine compliance with this part. The environmental review process includes all the compliance actions needed for other activities and projects that are not assisted by HUD but are aggregated by the responsible entity in accordance with SEC. 58.32. (b) The environmental review process should begin as soon as a recipient determines the projected use of HUD assistance.
Sec. 58.32 Project aggregation.
(a) A responsible entity must group together and evaluate as a single project all individual activities which are related either on a geographical or functional basis, or are logical parts of a composite of contemplated actions.
(b) In deciding the most appropriate basis for aggregation when evaluating activities under more than one program, the responsible entity may choose: functional aggregation when a specific type of activity (e.g., water improvements) is to take place in several {[[Page 415]]} separate locales or jurisdictions; geographic aggregation when a mix of dissimilar but related activities is to be concentrated in a fairly specific project area (e.g., a combination of water, sewer and street improvements and economic development activities); or a combination of aggregation approaches, which, for various project locations, considers the impacts arising from each functional activity and its interrelationship with other activities. (c) The purpose of project aggregation is to group together related activities so that the responsible entity can: (1) Address adequately and analyze, in a single environmental review, the separate and combined impacts of activities that are similar, connected and closely related, or that are dependent upon other activities and actions. (See 40 CFR 1508.25(a)). (2) Consider reasonable alternative courses of action. (3) Schedule the activities to resolve conflicts or mitigate the individual, combined and/or cumulative effects. (4) Prescribe mitigation measures and safeguards including project alternatives and modifications to individual activities. (d) Multi-year project aggregation--(1) Release of funds. When a recipient's planning and program development provide for activities to be implemented over two or more years, the responsible entity's environmental review should consider the relationship among all component activities of the multi-year project regardless of the source of funds and address and evaluate their cumulative environmental effects. The estimated range of the aggregated activities and the estimated cost of the total project must be listed and described by the responsible entity in the environmental review and included in the RROF. The
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(1) Environmental and other studies, resource identification and the development of plans and strategies; (2) Information and financial services; (3) Administrative and management activities; (4) Public services that will not have a physical impact or result in any physical changes, including but not limited to services concerned with employment, crime prevention, child care, {[[Page 416]]} health, drug abuse, education, counseling, energy conservation and welfare or recreational needs; (5) Inspections and testing of properties for hazards or defects; (6) Purchase of insurance; (7) Purchase of tools; (8) Engineering or design costs; (9) Technical assistance and training; (10) Assistance for temporary or permanent improvements that do not alter environmental conditions and are limited to protection, repair, or restoration activities necessary only to control or arrest the effects from disasters or imminent threats to public safety including those resulting from physical deterioration; (11) Payment of principal and interest on loans made or obligations guaranteed by HUD; (12) Any of the categorical exclusions listed in SEC. 58.35(a) provided that there are no circumstances which require compliance with any other Federal laws and authorities cited in SEC. 58.5. (b) A recipient does not have to submit an RROF and certification, and no further approval from HUD or the State will be needed by the recipient for the drawdown of funds to carry out exempt activities and projects. However, the responsible entity must document in writing its determination that each activity or project is exempt and meets the conditions specified for such exemption under this section. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15271, Mar. 30, 1998]
release of funds will cover the entire project period. (2) When one or more of the conditions described in SEC. 58.47 exists, the recipient or other responsible entity must re-evaluate the environmental review.
Sec. 58.33 Emergencies.
(a) In the cases of emergency, disaster or imminent threat to health and safety which warrant the taking of an action with significant environmental impact, the provisions of 40 CFR 1506.11 shall apply. (b) If funds are needed on an emergency basis and adherence to separate comment periods would prevent the giving of assistance during a Presidentially declared disaster, or during a local emergency that has been declared by the chief elected official of the responsible entity who has proclaimed that there is an immediate need for public action to protect the public safety, the combined Notice of FONSI and Notice of Intent to Request Release of Funds (NOI/RROF) may be disseminated and/or published simultaneously with the submission of the RROF. The combined Notice of FONSI and NOI/RROF shall state that the funds are needed on an emergency basis due to a declared disaster and that the comment periods have been combined. The Notice shall also invite commenters to submit their comments to both HUD and the responsible entity issuing the notice to ensure that these comments will receive full consideration. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56129, Sept. 29, 2003]
Sec. 58.34 Exempt activities.
(a) Except for the applicable requirements of SEC. 58.6, the responsible entity does not have to comply with the requirements of this part or undertake any environmental review, consultation or other action under NEPA and the other provisions of law or authorities cited in SEC. 58.5 for the activities exempt by this section or projects consisting solely of the following exempt activities:
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Sec. 58.35 Categorical exclusions.
Categorical exclusion refers to a category of activities for which no environmental impact statement or environmental assessment and finding of no significant impact under NEPA is required, except in extraordinary circumstances (see SEC. 58.2(a)(3)) in which a normally excluded activity may have a significant impact. Compliance with the other applicable Federal environmental laws and authorities listed in SEC. 58.5 is required for any categorical exclusion listed in paragraph (a) of this section. (a) Categorical exclusions subject to SEC. 58.5. The following activities are categorically excluded under NEPA, but may be subject to review under authorities listed in SEC. 58.5: (1) Acquisition, repair, improvement, reconstruction, or rehabilitation of public facilities and improvements (other than buildings) when the facilities and improvements are in place and will be retained in the same use without change in size or capacity of more than 20 percent (e.g., replacement of water or sewer lines, reconstruction of curbs and sidewalks, repaving of streets). (2) Special projects directed to the removal of material and architectural barriers that restrict the mobility of and accessibility to elderly and handicapped persons. (3) Rehabilitation of buildings and improvements when the following conditions are met: (i) In the case of a building for residential use (with one to four units), the density is not increased beyond four units, the land use is not changed, and the footprint of the building is not increased in a floodplain or in a wetland; (ii) In the case of multifamily residential buildings: (A) Unit density is not changed more than 20 percent;
(B) The project does not involve changes in land use from residential to nonresidential; and (C) The estimated cost of rehabilitation is less than 75 percent of the total estimated cost of replacement after rehabilitation. (iii) In the case of non-residential structures, including commercial, industrial, and public buildings: (A) The facilities and improvements are in place and will not be changed in size or capacity by more than 20 percent; and (B) The activity does not involve a change in land use, such as from nonresidential to residential, commercial to industrial, or from one industrial use to another. (4)(i) An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four oneunit buildings or one four-unit building or any combination in between; or (ii) An individual action on a project of five or more housing units developed on scattered sites when the sites are {[[Page 417]]} more than 2,000 feet apart and there are not more than four housing units on any one site. (iii) Paragraphs (a)(4)(i) and (ii) of this section do not apply to rehabilitation of a building for residential use (with one to four units) (see paragraph (a)(3)(i) of this section). (5) Acquisition (including leasing) or disposition of, or equity loans on an existing structure, or acquisition (including leasing) of vacant land provided that the structure or land acquired, financed, or disposed of will be retained for the same use. (6) Combinations of the above activities. (b) Categorical exclusions not subject to SEC. 58.5. The Department has determined that the following categorically excluded activities would not alter any conditions that would require a review or compliance determination under the Federal laws and authorities cited in SEC. 58.5. When the following kinds of activities are
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environmental review on the original project and re-evaluation of the environmental findings is not required under SEC. 58.47. (c) Circumstances requiring NEPA review. If a responsible entity determines that an activity or project identified in paragraph (a) or (b) of this section, because of extraordinary circumstances and conditions at or affecting the location of the activity or project, may have a significant environmental effect, it shall comply with all the requirements of this part. (d) The Environmental Review Record (ERR) must contain a well organized written record of the process and determinations made under this section. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15272, Mar. 30, 1998; 68 FR 56129, Sept. 29, 2003]
undertaken, the responsible entity does not have to publish a NOI/RROF or execute a certification and the recipient does not have to submit a RROF to HUD (or the State) except in the circumstances described in paragraph (c) of this section. Following the award of the assistance, no further approval from HUD or the State will be needed with respect to environmental requirements, except where paragraph (c) of this section applies. The recipient remains responsible for carrying out any applicable requirements under SEC. 58.6. (1) Tenant-based rental assistance; (2) Supportive services including, but not limited to, health care, housing services, permanent housing placement, day care, nutritional services, short-term payments for rent/mortgage/utility costs, and assistance in gaining access to local, State, and Federal government benefits and services; (3) Operating costs including maintenance, security, operation, utilities, furnishings, equipment, supplies, staff training and recruitment and other incidental costs; (4) Economic development activities, including but not limited to, equipment purchase, inventory financing, interest subsidy, operating expenses and similar costs not associated with construction or expansion of existing operations; (5) Activities to assist homebuyers to purchase existing dwelling units or dwelling units under construction, including closing costs and down payment assistance, interest buydowns, and similar activities that result in the transfer of title. (6) Affordable housing predevelopment costs including legal, consulting, developer and other costs related to obtaining site options, project financing, administrative costs and fees for loan commitments, zoning approvals, and other related activities which do not have a physical impact. (7) Approval of supplemental assistance (including insurance or guarantee) to a project previously approved under this part, if the approval is made by the same responsible entity that conducted the
Sec. 58.36 Environmental assessments.
If a project is not exempt or categorically excluded under SEC. Sec. 58.34 and 58.35, the responsible entity must prepare an EA in accordance with subpart E of this part. If it is evident without preparing an EA that an EIS is required under SEC. 58.37, the responsible entity should proceed directly to an EIS. {[[Page 418]]}
Sec. 58.37 Environmental impact statement determinations.
(a) An EIS is required when the project is determined to have a potentially significant impact on the human environment. (b) An EIS is required under any of the following circumstances, except as provided in paragraph (c) of this section: (1) The project would provide a site or sites for, or result in the construction of, hospitals or nursing homes containing a total of 2,500 or more beds. (2) The project would remove, demolish, convert or substantially rehabilitate 2,500 or more existing housing units (but not including rehabilitation
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projects categorically excluded under SEC. 58.35), or would result in the construction or installation of 2,500 or more housing units, or would provide sites for 2,500 or more housing units. (3) The project would provide enough additional water and sewer capacity to support 2,500 or more additional housing units. The project does not have to be specifically intended for residential use nor does it have to be totally new construction. If the project is designed to provide upgraded service to existing development as well as to serve new development, only that portion of the increased capacity which is intended to serve new development should be counted. (c) If, on the basis of an EA, a responsible entity determines that the thresholds in paragraph (b) of this section are the sole reason for the EIS, the responsible entity may prepare a FONSI pursuant to 40 CFR 1501.4. In such cases, the FONSI must be made available for public review for at least 30 days before the responsible entity makes the final determination whether to prepare an EIS. (d) Notwithstanding paragraphs (a) through (c) of this section, an EIS is not required where SEC. 58.53 is applicable. (e) Recommended EIS Format. The responsible entity must use the EIS format recommended by the CEQ regulations (40 CFR 1502.10) unless a determination is made on a particular project that there is a compelling reason to do otherwise. In such a case, the EIS format must meet the minimum requirements prescribed in 40 CFR 1502.10.
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HUD-recommended formats or develop equivalent formats. (a) ERR Documents. The ERR shall contain all the environmental review documents, public notices and written determinations or environmental findings required by this part as evidence of review, decisionmaking and actions pertaining to a particular project of a recipient. The document shall: (1) Describe the project and the activities that the recipient has determined to be part of the project; (2) Evaluate the effects of the project or the activities on the human environment; (3) Document compliance with applicable statutes and authorities, in particular those cited in SEC. 58.5 and 58.6; and (4) Record the written determinations and other review findings required by this part (e.g., exempt and categorically excluded projects determinations, findings of no significant impact). (b) Other documents and information. The ERR shall also contain verifiable source documents and relevant base data used or cited in EAs, EISs or other project review documents. These documents may be incorporated by reference into the ERR provided that each source document is identified and available for inspection by interested parties. Proprietary material and special studies prepared for the recipient that are not otherwise generally available for public review shall not be incorporated by reference but shall be included in the ERR. {[[Page 419]]}
Sec. 58.38 Environmental review record.
The responsible entity must maintain a written record of the environmental review undertaken under this part for each project. This document will be designated the ``Environmental Review Record'' (ERR), and shall be available for public review. The responsible entity must use the current
Subpart E_Environmental Review Process: Environmental Assessments (EA's)
Sec. 58.40 Preparing the environmental assessment.
The responsible entity may prepare the EA using the HUD recommended format. In
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preparing an EA for a particular project, the responsible entity must: (a) Determine existing conditions and describe the character, features and resources of the project area and its surroundings; identify the trends that are likely to continue in the absence of the project. (b) Identify all potential environmental impacts, whether beneficial or adverse, and the conditions that would change as a result of the project. (c) Identify, analyze and evaluate all impacts to determine the significance of their effects on the human environment and whether the project will require further compliance under related laws and authorities cited in SEC. 58.5 and SEC. 58.6. (d) Examine and recommend feasible ways in which the project or external factors relating to the project could be modified in order to eliminate or minimize adverse environmental impacts. (e) Examine alternatives to the project itself, if appropriate, including the alternative of no action. (f) Complete all environmental review requirements necessary for the project's compliance with applicable authorities cited in SEC. Sec. 58.5 and 58.6. (g) Based on steps set forth in paragraph (a) through (f) of this section, make one of the following findings: (1) A Finding of No Significant Impact (FONSI), in which the responsible entity determines that the project is not an action that will result in a significant impact on the quality of the human environment. The responsible entity may then proceed to SEC. 58.43. (2) A finding of significant impact, in which the project is deemed to be an action which may significantly affect the quality of the human environment. The responsible entity must then proceed with its environmental review under subpart F or G of this part.
Sec. 58.43 Dissemination and/or publication of the findings of no significant impact.
(a) If the responsible entity makes a finding of no significant impact, it must prepare a FONSI notice, using the current HUDrecommended format or an equivalent format. As a minimum, the responsible entity must send the FONSI notice to individuals and groups known to be interested in the activities, to the local news media, to the appropriate tribal, local, State and Federal agencies; to the Regional Offices of the Environmental Protection Agency having jurisdiction and to the HUD Field Office (or the State where applicable). The responsible entity may also publish the FONSI notice in a newspaper of general circulation in the affected community. If the notice is not published, it must also be prominently displayed in public buildings, such as the local Post Office and within the project area or in accordance with procedures established as part of the citizen participation process. (b) The responsible entity may disseminate or publish a FONSI notice at the same time it disseminates or publishes the NOI/RROF required by SEC. 58.70. If the notices are released as a combined notice, the combined notice shall: (1) Clearly indicate that it is intended to meet two separate procedural requirements; and (2) Advise the public to specify in their comments which ``notice'' their comments address. (c) The responsible entity must consider the comments and make modifications, if appropriate, in response to the comments, before it completes its environmental certification and before the recipient submits its RROF. If funds will be used in Presidentially declared disaster areas, modifications resulting from public comment, if appropriate, must be made before proceeding with the expenditure of funds.
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Sec. 58.45 Public comment periods.
Required notices must afford the public the following minimum comment periods, counted in accordance with SEC. 58.21: {[[Page 420]]} --------------------------------------------------------------------------------------------------------------------------------------------(a) Notice of Finding of No Significant 15 days when published or, if Impact (FONSI). no publication, 18 days when mailing and posting (b) Notice of Intent to Request Release 7 days when published or, if no of Funds (NOI-RROF). publication, 10 days when mailing and posting (c) Concurrent or combined notices..... 15 days when published or, if no publication, 18 days when mailing and posting ----------------------------------------------------------------------[68 FR 56130, Sept. 29, 2003]
Sec. 58.47 Re-evaluation of environmental assessments and other environmental findings.
(a) A responsible entity must reevaluate its environmental findings to determine if the original findings are still valid, when: (1) The recipient proposes substantial changes in the nature, magnitude or extent of the project, including adding new activities not anticipated in the original scope of the project; (2) There are new circumstances and environmental conditions which may affect the project or have a bearing on its impact, such as concealed or unexpected conditions discovered during the implementation of the project or activity which is proposed to be continued; or (3) The recipient proposes the selection of an alternative not in the original finding. (b)(1) If the original findings are still valid but the data or conditions upon which they were based have changed, the responsible entity must affirm the original findings and update its ERR by including this re-evaluation and its determination based on its findings. Under these circumstances, if a FONSI notice has already been published, no further publication of a FONSI notice is required. (2) If the responsible entity determines that the original findings are no longer valid, it must prepare an EA or an EIS if its evaluation indicates potentially significant impacts. (3) Where the recipient is not the responsible entity, the recipient must inform the responsible entity promptly of any proposed substantial changes under paragraph (a)(1) of this section, new circumstances or environmental conditions under paragraph (a)(2) of this section, or any proposals to select a different alternative under paragraph (a)(3) of this section, and must then permit the responsible entity to reevaluate the findings before proceeding. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15272, Mar. 30, 1998]
Sec. 58.46 Time delays for exceptional circumstances.
The responsible entity must make the FONSI available for public comments for 30 days before the recipient files the RROF when: (a) There is a considerable interest or controversy concerning the project; (b) The proposed project is similar to other projects that normally require the preparation of an EIS; or (c) The project is unique and without precedent.
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no new EIS is required for the subsequent project if all the following conditions are met: (a) The ERR contains a decision based on a finding pursuant to SEC. 58.40 that the proposed project is not a new major Federal action significantly affecting the quality of the human environment. The decision shall include: (1) References to the prior EIS and its evaluation of the environmental factors affecting the proposed subsequent action subject to NEPA; (2) An evaluation of any environmental factors which may not have been previously assessed, or which may have significantly changed; (3) An analysis showing that the proposed project is consistent with the location, use, and density assumptions for the site and with the timing and capacity of the circulation, utility, and other supporting infrastructure assumptions in the prior EIS; (4) Documentation showing that where the previous EIS called for mitigating measures or other corrective action, these are completed to the extent reasonable given the current state of development. (b) The prior final EIS has been filed within five (5) years, and updated as follows: (1) The EIS has been updated to reflect any significant revisions made to the assumptions under which the original EIS was prepared; (2) The EIS has been updated to reflect new environmental issues and data or legislation and implementing regulations which may have significant environmental impact on the project area covered by the prior EIS. (c) There is no litigation pending in connection with the prior EIS, and no final judicial finding of inadequacy of the prior EIS has been made.
Subpart F_Environmental Review Process: Environmental Impact Statement Determinations
Sec. 58.52 Adoption of other agencies' EISs.
The responsible entity may adopt a draft or final EIS prepared by another agency provided that the EIS was prepared in accordance with 40 CFR parts 1500 through 1508. If the responsible entity adopts an EIS prepared by another agency, the procedure in 40 CFR 1506.3 shall be followed. An adopted EIS may have to be revised and modified to adapt it to the particular environmental conditions and circumstances of the project if these are different from the project reviewed in the EIS. In such cases the responsible entity must prepare, circulate, and file a supplemental draft EIS in the manner prescribed in SEC. 58.60(d) and otherwise comply with the clearance and time requirements of the EIS process, except {[[Page 421]]} that scoping requirements under 40 CFR 1501.7 shall not apply. The agency that prepared the original EIS should be informed that the responsible entity intends to amend and adopt the EIS. The responsible entity may adopt an EIS when it acts as a cooperating agency in its preparation under 40 CFR 1506.3. The responsible entity is not required to re-circulate or file the EIS, but must complete the clearance process for the RROF. The decision to adopt an EIS shall be made a part of the project ERR.
Sec. 58.53 Use of prior environmental impact statements.
Where any final EIS has been listed in the Federal Register for a project pursuant to this part, or where an areawide or similar broad scale final EIS has been issued and the EIS anticipated a subsequent project requiring an environmental clearance, then
Subpart G_Environmental Review Process: Procedures for Draft, Final and
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Sec. 58.55 Notice of intent to prepare an EIS.
As soon as practicable after the responsible entity decides to prepare an EIS, it must publish a NOI/EIS, using the HUD recommended format and disseminate it in the same manner as required by 40 CFR parts 1500 through 1508.
Sec. 58.56 Scoping process.
The determination on whether or not to hold a scoping meeting will depend on the same circumstances and factors as for the holding of public hearings under SEC. 58.59. The responsible entity must wait at least 15 days after disseminating or publishing the NOI/EIS before holding a scoping meeting.
Sec. 58.57 Lead agency designation.
If there are several agencies ready to assume the lead role, the responsible entity must make its decision based on the criteria in 40 CFR 1501.5(c). If the responsible entity and a Federal agency are unable to reach agreement, then the responsible entity must notify HUD (or the State, where applicable). HUD (or the State) will assist in obtaining a determination based on the procedure set forth in 40 CFR 1501.5(e).
(3) The complexity of the issues and the likelihood that information will be presented at the hearing which will be of assistance to the responsible entity. (4) The extent to which public involvement has been achieved through other means. (b) Procedure. All public hearings must be preceded by a notice of public hearing, which must be published in the local news media 15 days before the hearing date. The Notice must: (1) State the date, time, place, and purpose of the hearing or meeting. (2) Describe the project, its estimated costs, and the project area. (3) State that persons desiring to be heard on environmental issues will be afforded the opportunity to be heard. (4) State the responsible entity's name and address and the name and address of its Certifying Officer. (5) State what documents are available, where they can be obtained, and any charges that may apply.
Sec. 58.60 Preparation and filing of environmental impact statements.
(a) The responsible entity must prepare the draft environmental impact statement (DEIS) and the final environmental impact statements (FEIS) using the current HUD recommended format or its equivalent. (b) The responsible entity must file and distribute the (DEIS) and the (FEIS) in the following manner: (1) Five copies to EPA Headquarters; (2) Five copies to EPA Regional Office; (3) Copies made available in the responsible entity's and the recipient's office; (4) Copies or summaries made available to persons who request them; and (5) FEIS only--one copy to State, HUD Field Office, and HUD Headquarters library. (c) The responsible entity may request waivers from the time requirements specified for the draft and final EIS as prescribed in 40 CFR 1506.6.
Sec. 58.59 Public hearings and meetings.
(a) Factors to consider. In determining whether or not to hold public hearings in accordance with 40 CFR 1506.6, the responsible entity must consider the following factors: {[[Page 422]]} (1) The magnitude of the project in terms of economic costs, the geographic area involved, and the uniqueness or size of commitment of resources involved. (2) The degree of interest in or controversy concerning the project.
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along with a description of any special environmental conditions that must be adhered to in carrying out the project. The recipient is to submit the RROF and the certification of the responsible entity to HUD (or the State, if applicable) requesting the release of {[[Page 423]]} funds. The recipient must agree to abide by the special conditions, procedures and requirements of the environmental review, and to advise the responsible entity of any proposed change in the scope of the project or any change in environmental conditions. (c) If the responsible entity determines that some of the activities are exempt under applicable provisions of this part, the responsible entity shall advise the recipient that it may commit funds for these activities as soon as programmatic authorization is received. This finding shall be documented in the ERR maintained by the responsible entity and in the recipient's project files.
(d) When substantial changes are proposed in a project or when significant new circumstances or information becomes available during an environmental review, the recipient may prepare a supplemental EIS as prescribed in 40 CFR 1502.9. (e) The responsible entity must prepare a Record of Decision (ROD) as prescribed in 40 CFR 1505.2. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15272, Mar. 30, 1998]
Subpart H_Release of Funds for Particular Projects
Sec. 58.70 Notice of intent to request release of funds.
The NOI/RROF must be disseminated and/or published in the manner prescribed by SEC. 58.43 and SEC. 58.45 before the certification is signed by the responsible entity.
Sec. 58.71 Request for release of funds and certification.
(a) The RROF and certification shall be sent to the appropriate HUD Field Office (or the State, if applicable), except as provided in paragraph (b) of this section. This request shall be executed by the Certifying Officer. The request shall describe the specific project and activities covered by the request and contain the certification required under the applicable statute cited in SEC. 58.1(b). The RROF and certification must be in a form specified by HUD. (b) When the responsible entity is conducting an environmental review on behalf of a recipient, as provided for in SEC. 58.10, the recipient must provide the responsible entity with all available project and environmental information and refrain from undertaking any physical activities or choice limiting actions until HUD (or the State, if applicable) has approved its request for release of funds. The certification form executed by the responsible entity's certifying officer shall be sent to the recipient that is to receive the assistance
Sec. 58.72 HUD or State actions on RROFs and certifications.
The actions which HUD (or a State) may take with respect to a recipient's environmental certification and RROF are as follows: (a) In the absence of any receipt of objection to the contrary, except as provided in paragraph (b) of this section, HUD (or the State) will assume the validity of the certification and RROF and will approve these documents after expiration of the 15day period prescribed by statute. (b) HUD (or the state) may disapprove a certification and RROF if it has knowledge that the responsible entity or other participants in the development process have not complied with the items in SEC. 58.75, or that the RROF and certification are inaccurate. (c) In cases in which HUD has approved a certification and RROF but subsequently learns (e.g., through monitoring) that the recipient violated SEC. 58.22 or the recipient or responsible entity otherwise failed to comply with a clearly
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applicable environmental authority, HUD shall impose appropriate remedies and sanctions in accord with the law and regulations for the program under which the violation was found. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56130, Sept. 29, 2003]
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Sec. 58.73 Objections to release of funds.
HUD (or the State) will not approve the ROF for any project before 15 calendar days have elapsed from the time of receipt of the RROF and the certification or from the time specified in the notice published pursuant to SEC. 58.70, whichever is later. Any person or agency may object to a recipient's RROF and the related certification. However, the objections must meet the conditions and procedures set forth in subpart H of this part. HUD (or the State) can refuse the RROF and certification on any grounds set forth in SEC. 58.75. All decisions by HUD (or the State) regarding the RROF and the certification shall be final.
(c) The responsible entity has omitted one or more of the steps set forth at subpart E of this part for the preparation, publication and completion of an EA. (d) The responsible entity has omitted one or more of the steps set forth at subparts F and G of this part for the conduct, preparation, publication and completion of an EIS. (e) The recipient or other participants in the development process have committed funds, incurred costs or undertaken activities not authorized by this part before release of funds and approval of the environmental certification by HUD (or the state). (f) Another Federal agency acting pursuant to 40 CFR part 1504 has submitted a written finding that the {[[Page 424]]} project is unsatisfactory from the standpoint of environmental quality. [61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56130, Sept. 29, 2003]
Sec. 58.76 Procedure for objections.
A person or agency objecting to a responsible entity's RROF and certification shall submit objections in writing to HUD (or the State). The objections shall: (a) Include the name, address and telephone number of the person or agency submitting the objection, and be signed by the person or authorized official of an agency. (b) Be dated when signed. (c) Describe the basis for objection and the facts or legal authority supporting the objection. (d) State when a copy of the objection was mailed or delivered to the responsible entity's Certifying Officer.
Sec. 58.74 Time for objecting.
All objections must be received by HUD (or the State) within 15 days from the time HUD (or the State) receives the recipient's RROF and the related certification, or within the time period specified in the notice, whichever is later.
Sec. 58.75 Permissible bases for objections.
HUD (or the State), will consider objections claiming a responsible entity's noncompliance with this part based only on any of the following grounds: (a) The certification was not in fact executed by the responsible entity's Certifying Officer. (b) The responsible entity has failed to make one of the two findings pursuant to SEC. 58.40 or to make the written determination required by SEC. Sec. 58.35, 58.47 or 58.53 for the project, as applicable.
Sec. 58.77 Effect of approval of certification.
(a) Responsibilities of HUD and States. HUD's (or, where applicable, the State's) approval of the certification shall be deemed to satisfy the responsibilities of the Secretary under NEPA and related provisions of law cited at SEC. 58.5 insofar as those
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(ii) HUD may require attendance by staff of the responsible entity at HUDsponsored or approved training, which will be provided periodically at various locations around the country; (iii) HUD may refuse to accept the certifications of environmental compliance on subsequent grants; (iv) HUD may suspend or terminate the responsible entity's assumption of the environmental review responsibility; (v) HUD may initiate sanctions, corrective actions, or other remedies specified in program regulations or agreements or contracts with the recipient. (2) HUD's responsibilities and action under paragraph (d)(1) of this section shall not be construed to limit or reduce any responsibility assumed by a responsible entity with respect to any particular release of funds under this part. Whether or not HUD takes action under paragraph (d)(1) of this section, the Certifying Officer remains the responsible Federal official under SEC. 58.13 with respect to projects and activities for which the Certifying Officer has submitted a certification under this part. {[[Page 425]]}
responsibilities relate to the release of funds as authorized by the applicable provisions of law cited in SEC. 58.1(b). (b) Public and agency redress. Persons and agencies seeking redress in relation to environmental reviews covered by an approved certification shall deal with the responsible entity and not with HUD. It is HUD's policy to refer all inquiries and complaints to the responsible entity and its Certifying Officer. Similarly, the State (where applicable) may direct persons and agencies seeking redress in relation to environmental reviews covered by an approved certification to deal with the responsible entity, and not the State, and may refer inquiries and complaints to the responsible entity and its Certifying Officer. Remedies for noncompliance are set forth in program regulations. (c) Implementation of environmental review decisions. Projects of a recipient will require post-review monitoring and other inspection and enforcement actions by the recipient and the State or HUD (using procedures provided for in program regulations) to assure that decisions adopted through the environmental review process are carried out during project development and implementation. (d) Responsibility for monitoring and training. (1) At least once every three years, HUD intends to conduct in-depth monitoring and exercise quality control (through training and consultation) over the environmental activities performed by responsible entities under this part. Limited monitoring of these environmental activities will be conducted during each program monitoring site visit. If through limited or in-depth monitoring of these environmental activities or by other means, HUD becomes aware of any environmental deficiencies, HUD may take one or more of the following actions: (i) In the case of problems found during limited monitoring, HUD may schedule indepth monitoring at an earlier date or may schedule in-depth monitoring more frequently;
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24 CFR 70 Volunteers, Davis-Bacon And HudDetermined Wage Rates
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 425-428] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 70_USE OF VOLUNTEERS ON PROJECTS SUBJECT TO DAVISBACON AND HUD-DETERMINED WAGE RATES--Table of Contents 70.1 Purpose and authority. 70.2 Applicability. 70.3 Definitions. 70.4 Procedure for implementing prevailing wage exemptions for volunteers. 70.5 Procedure for obtaining HUD waiver of prevailing wage rates for volunteers. Authority: SEC. 955, CranstonGonzalez National Affordable Housing Act (42 U.S.C. 1437(j), 5310 and 12 U.S.C. 1701q(c)(3); SEC. 7(d) Department of Housing and Urban Development Act (42 U.S.C. 3535(d)). Source: 57 FR 14756, Apr. 22, 1992, unless otherwise noted.
Sec. 70.1 Purpose and authority.
(a) This part implements section 955 of the National Affordable Housing Act (NAHA), which provides an exemption from the requirement to pay prevailing wage rates determined under the Davis-Bacon Act or (in the case of laborers and mechanics employed in the operation of public housing projects, and architects, technical engineers, draftsmen and technicians employed in the
development of public housing projects) determined or adopted by HUD, for volunteers employed on projects that are subject to prevailing wage rates under Title I of the Housing and Community Development Act of 1974 (including Community Development Block Grants, section 108 loan guarantees, and Urban Development Action Grants), under section 12 of the United States Housing Act of 1937 (public housing development and operation and section 8 projects), and under section 202 of the Housing Act of 1959 for elderly and handicapped housing projects prior to the effective date of the amendment of section 202 by section 801 of NAHA. This part also implements other provisions that provide an exemption for volunteers, including section 286 of NAHA (the HOME program), section 202 of the House Act of 1959, as amended by NAHA (supportive housing for the elderly), and any laterenacted exemptions. (b) This part is also applicable to all HUD programs for which there is a statutory provision allowing HUD to waive DavisBacon wage rates for volunteers that are not otherwise employed at any time on the work for which the individual volunteers. These programs include section 811 of NAHA (supportive housing for persons with disabilities), FHA mortgage insurance programs under sections 221(d)(3) and (d)(4) (each with respect to cooperative housing projects only), 221(h)(1) (but only where a nonprofit organization undertakes the construction), 235(j)(1) (but only where a nonprofit organization undertakes the construction), 231, 232, 236 and 242 of the National Housing Act, rehabilitation under section 312 of the Housing Act of 1964 and college housing under section 402 of the Housing Act of 1950. (c) This part provides definitions and procedures for determining allowable payments to volunteers, determining who is a bona fide volunteer, and otherwise implementing exemptions from and waivers of prevailing wage requirements where volunteers are employed.
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HUD on a case-by-case basis by examining the total amount of payments made (expenses, benefits, fees) in the context of the economic realities of the particular situation. Subject to this determination: (1) A payment for an expense may be received by a volunteer for items such as uniform allowances or reimbursement for reasonable cleaning expenses or wear and tear on personal clothing worn while performing the volunteer work. Additionally, reimbursement for approximate out-of-pocket expenses for the cost of meals and transportation expenses may be made. (2) Reasonable benefits may constitute inclusion of individual volunteers in group insurance plans (such as liability, health, life, disability, workers' compensation) or pension plan or length of service awards. (3) A nominal fee is not a substitute for compensation and must not be tied to productivity. The decision as to what constitutes ``nominal'' must be made on a case-by-case basis and in the context of the economic realities of the situation. (4) The phrase economic realities means that in determining whether the fee described in paragraph (b)(3) of this section may be deemed ``nominal'', the amount of the fee must be judged in the context of what paid workers doing the same work would earn in the particular locality involved. For example, a ``payment'' made to a ``homeless'' volunteer in an amount which covers basic necessities but nonetheless represents an insignificant amount when compared with local cost of living and real wages may be determined to be nominal for purposes of qualifying as a volunteer, provided the payment is not in fact a substitute for compensation and is not tied in any way to productivity. (c) Prevailing wage rates, for purposes of this part, means: (1) Wage rates required to be paid to laborers and mechanics employed in the construction (including rehabilitation) of a project (or in the case of public housing, the development of the project), as determined
Sec. 70.2 Applicability.
This part applies to all HUD programs for which there is a statutory exemption from Davis-Bacon or HUD-determined prevailing wage rates for volunteers or a statutory provision allowing HUD waiver of Davis-Bacon prevailing wage rates for volunteers. The programs to which this part applies include the programs listed in section 70.1(a) and (b) and any other program for which a statutory exemption or HUD waiver provision for volunteers is enacted. This part does not, however, {[[Page 426]]} apply to HUD waivers of prevailing wage requirements under section 20 of the United States Housing Act of 1937 for public housing residents who volunteer a portion of their labor (see 24 CFR 964.41). This part also does not apply to the contribution of labor by an eligible family under the Mutual Help Homeownership Opportunity Program for Indian families under section 202 of the United States Housing Act of 1937.
Sec. 70.3 Definitions.
(a) A volunteer, for purposes of this part, is an individual who performs service for a public or private entity for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, on a HUD-assisted or insured project which is subject to a requirement to pay prevailing wage rates. (1) Individuals shall be considered volunteers only where their services are offered freely and without pressure and coercion, direct or implied, from an employer. (2) An individual shall not be considered a volunteer if the individual is otherwise employed at any time in the construction or maintenance work for which the individual volunteers. (b) Expenses, reasonable benefits, or nominal fees may be provided to volunteers without the status of the volunteer being lost but only after a determination is made by
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by the Secretary of Labor under the DavisBacon Act; (2) Wage rates required to be paid to laborers and mechanics employed in the operation of a public housing project, as determined or adopted by the Secretary of HUD; and (3) Wage rates required to be paid to architects, technical engineers, draftsmen and technicians employed in the development of a public housing project, as determined or adopted by the Secretary of HUD.
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Sec. 70.4 Procedure for implementing prevailing wage exemptions for volunteers.
(a) This section applies to those HUD programs for which there is a statutory exemption for volunteers, as referenced in SEC. 70.1(a). (b) Local or State agencies or private parties whose employees are otherwise {[[Page 427]]} subject to Davis-Bacon or HUDdetermined prevailing wage rates which propose to use volunteers and wish to pay the volunteers' expenses, reasonable benefits, or nominal fees shall request a determination from HUD that these payments meet the criteria in SEC. 70.3(b). A written determination shall be provided to the requester by the Department within ten days of receipt by the Department of sufficient information to allow for the determination. (c) A determination under paragraph (b) shall not be construed in any way as limiting the use of bona fide volunteers on HUD-assisted construction, but rather is required to ensure that the Department performs its appropriate responsibilities under Reorganization Plan No. 14 of 1950 and related Department of Labor Regulations in title 29 CFR part 5, regarding the administration and enforcement of the Davis-Bacon and Related Acts, and its responsibility for the administration and
enforcement of HUD-determined or adopted wage rates in the operation of public housing assisted under the United States Housing Act of 1937. (d) For a project covered by prevailing wage rate requirements in which all the work is to be done by volunteers and there are no paid construction employees, the local or State funding agency (or, if none, the entity that employs the volunteers) shall record in the pertinent project file the name and address of the agency sponsoring the project, a description of the project (location, cost, nature of the work), and the number of volunteers and the hours of work they performed. The entity responsible for recording this information shall also provide a copy of this information to HUD. (e) For a project covered by prevailing wage rate requirements in which there is to be a mix of paid workers and volunteers, the local or State funding agency (or, if none, the entity responsible for generating certified payrolls) shall provide HUD the information in paragraph (d) of this section, along with the names of the volunteers. (f) Volunteers who receive no expenses, benefits or fees described in (c) and are otherwise bona fide shall be recorded as in (d) or (e).
Sec. 70.5 Procedure for obtaining HUD waiver of prevailing wage rates for volunteers.
(a) This section applies to those HUD programs under which HUD is statutorily authorized to waive prevailing wage requirements for volunteers, as referenced in SEC. 70.1(b). (b) Local or State agencies or private parties whose employees are otherwise subject to prevailing wage rates and which wish to use volunteers shall request a waiver of prevailing wage requirements from HUD for the volunteers. A request for waiver shall indicate that the proposed volunteers are volunteering their services for the purposes of lowering the costs of construction. The
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request shall include information sufficient for HUD to make a determination, as required by statute, that any amounts saved through the use of volunteers are fully credited to the corporation, cooperative, or public body or agency undertaking the construction and a determination that any payments to volunteers meet the criteria in section 70.3(b). Information regarding the crediting of amounts saved is required in order to insure that the statutorily prescribed purpose of lowering the costs of construction is fulfilled by passing savings from the use of volunteers on to the sponsor or other body or agency undertaking the construction, rather than permitting the retention of any savings as a windfall by a contractor or subcontractor. A written waiver shall be provided to the requestor by the Department within ten days of receipt by the Department of sufficient information to meet the requirements for a waiver. (c) For a project covered by prevailing wage rate requirements in which all the work is to be done by volunteers and there are no paid construction employees, the local or State funding agency (or, if none, the entity that employs the volunteers) shall record in the pertinent project file the name and address of the agency sponsoring the project, the name, location, and HUD project number (if any) of the project, the number of volunteers, and type of work and hours of work they performed. The entity responsible for recording this information shall provide a copy of the information to HUD. {[[Page 428]]} (d) For a project covered by prevailing wage rate requirements in which there is to be a mix of paid workers and volunteers, the local or State funding agency (or, if none, the entity responsible for generating certified payrolls) shall provide HUD the information in (c) of this section, along with the names of the proposed volunteers.
24 CFR 87 New Restrictions On Lobbying
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 529-540] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 87_NEW RESTRICTIONS ON LOBBYING Subpart A_General 87.100 Conditions on use of funds. 87.105 Definitions. 87.110 Certification and disclosure. Subpart B_Activities by Own Employees 87.200 Agency and legislative liaison. 87.205 Professional and technical services. 87.210 Reporting. Subpart C_Activities by Other Than Own Employees 87.300 Professional and technical services. Subpart D_Penalties and Enforcement 87.400 Penalties. 87.405 Penalty procedures. 87.410 Enforcement. Subpart E_Exemptions 87.500 Secretary of Defense. Subpart F_Agency Reports 87.600 Semi-annual compilation. {[[Page 530]]} 87.605 Inspector General report. Appendix A to Part 87--Certification Regarding Lobbying Appendix B to Part 87--Disclosure Form to Report Lobbying
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Authority: 31 U.S.C. 1352; 42 U.S.C. 3535(d). Source: 55 FR 6737, 6750, Feb. 26, 1990, unless otherwise noted. Cross reference: See also OMB notice published at 54 FR 52306, December 20, 1989.
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Sec. 87.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a Federal contract, grant, loan, or cooperative ageement to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any of the following covered Federal actions: the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative agreement shall file with that agency a certification, set forth in appendix A, that the person has not made, and will not make, any payment prohibited by paragraph (a) of this section. (c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative agreement shall file with that agency a disclosure form, set forth in appendix B, if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action), which would be prohibited under paragraph (a) of this section if paid for with appropriated funds.
(d) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a statement, set forth in appendix A, whether that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee. (e) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a disclosure form, set forth in appendix B, if that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.
Sec. 87.105 Definitions.
For purposes of this part: (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive departments and agencies as well as independent regulatory commissions and Government corporations, as defined in 31 U.S.C. 9101(1). (b) Covered Federal action means any of the following Federal actions: (1) The awarding of any Federal contract; (2) The making of any Federal grant; (3) The making of any Federal loan; (4) The entering into of any cooperative agreement; and, (5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. Covered Federal action does not include receiving from an agency a commitment providing for the United States to insure or guarantee a loan. Loan
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representative organization, and any other instrumentality of a local government. (k) Officer or employee of an agency includes the following individuals who are employed by an agency: (1) An individual who is appointed to a position in the Government under title 5, U.S. Code, including a position under a temporary appointment; (2) A member of the uniformed services as defined in section 101(3), title 37, U.S. Code; (3) A special Government employee as defined in section 202, title 18, U.S. Code; and, (4) An individual who is a member of a Federal advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix 2. (l) Person means an individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit or not for profit. This term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law. (m) Reasonable compensation means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the normal compensation for such officer or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal Government. (n) Reasonable payment means, with respect to perfessional and other technical services, a payment in an amount that is consistent with the amount normally paid for such services in the private sector. (o) Recipient includes all contractors, subcontractors at any tier, and subgrantees at any tier of the recipient of funds received in connection with a Federal contract, grant, loan, or cooperative agreement. The term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.
guarantees and loan insurance are addressed independently within this part. (c) Federal contract means an acquisition contract awarded by an agency, including those subject to the Federal Acquisition Regulation (FAR), and any other acquisition contract for real or personal property or services not subject to the FAR. (d) Federal cooperative agreement means a cooperative agreement entered into by an agency. {[[Page 531]]} (e) Federal grant means an award of financial assistance in the form of money, or property in lieu of money, by the Federal Government or a direct appropriation made by law to any person. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, loan insurance, interest subsidies, insurance, or direct United States cash assistance to an individual. (f) Federal loan means a loan made by an agency. The term does not include loan guarantee or loan insurance. (g) Indian tribe and tribal organization have the meaning provided in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions of Indian tribes in that Act. (h) Influencing or attempting to influence means making, with the intent to influence, any communication to or appearance before an officer or employee or any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any covered Federal action. (i) Loan guarantee and loan insurance means an agency's guarantee or insurance of a loan made by a person. (j) Local government means a unit of government in a State and, if chartered, established, or otherwise recognized by a State for the performance of a governmental duty, including a local public authority, a special district, an intrastate district, a council of governments, a sponsor group
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(p) Regularly employed means, with respect to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or a commitment providing for the United States to insure or guarantee a loan, an officer or employee who is employed by such person for at least 130 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person for receipt of such contract, grant, loan, cooperative agreement, loan insurance commitment, or loan guarantee commitment. An officer or employee who is employed by such person for less than {[[Page 532]]} 130 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person shall be considered to be regularly employed as soon as he or she is employed by such person for 130 working days. (q) State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, an agency or instrumentality of a State, and a multiState, regional, or interstate entity having governmental duties and powers.
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Sec. 87.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if required, with each submission that initiates agency consideration of such person for: (1) Award of a Federal contract, grant, or cooperative agreement exceeding $100,000; or (2) An award of a Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000 or the single family maximum mortgage limit for affected programs, whichever is greater. (b) Each person shall file a certification, and a disclosure form, if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding $100,000; or (2) A Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000 or the single family maximum mortgage limit for affected programs, whichever is greater. Unless such person previously filed a certification, and a disclosure form, if required, under paragraph (a) of this section. (c) Each person shall file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person under paragraphs (a) or (b) of this section. An event that materially affects the accuracy of the information reported includes: (1) A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal action; or (2) A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or, (3) A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action. (d) Any person who requests or receives from a person referred to in paragraphs (a) or (b) of this section: (1) A subcontract exceeding $100,000 at any tier under a Federal contract; (2) A subgrant, contract, or subcontract exceeding $100,000 at any tier under a Federal grant; (3) A contract or subcontract exceeding $100,000 at any tier under a Federal loan exceeding $150,000; or, (4) A contract or subcontract exceeding $100,000 at any tier under a Federal cooperative agreement, Shall file a certification, and a disclosure form, if required, to the next tier above. (e) All disclosure forms, but not certifications, shall be forwarded from tier to
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reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement if the payment is for agency and legislative liaison activities not directly related to a covered Federal action. (b) For purposes of paragraph (a) of this section, providing any information specifically requested by an agency or Congress is allowable at any time. (c) For purposes of paragraph (a) of this section, the following agency and legislative liaison activities are allowable at any time only where they are not related to a specific solicitation for any covered Federal action: (1) Discussing with an agency (including individual demonstrations) the qualities and characteristics of the person's products or services, conditions or terms of sale, and service capabilities; and, (2) Technical discussions and other activities regarding the application or adaptation of the person's products or services for an agency's use. (d) For purposes of paragraph (a) of this section, the following agencies and legislative liaison activities are allowable only where they are prior to formal solicitation of any covered Federal action: (1) Providing any information not specifically requested but necessary for an agency to make an informed decision about initiation of a covered Federal action; (2) Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and, (3) Capability presentations by persons seeking awards from an agency pursuant to the provisions of the Small Business Act, as amended by Pub. L. 95-507 and other subsequent amendments. (e) Only those activities expressly authorized by this section are allowable under this section.
tier until received by the person referred to in paragraphs (a) or (b) of this section. That person shall forward all disclosure forms to the agency. (f) Any certification or disclosure form filed under paragraph (e) of this section shall be treated as a material representation of fact upon which all receiving tiers shall rely. All liability arising from an erroneous representation shall be borne solely by the tier filing that representation and shall not be shared by any tier to which the erroneous representation is forwarded. Submitting an erroneous certification or disclosure constitutes a failure to file the required certification or disclosure, respectively. If a person fails to file a required certification or disclosure, the United States may pursue all available remedies, including those authorized by section 1352, title 31, U.S. Code. (g) For awards and commitments in process prior to December 23, 1989, but not made before that date, certifications shall be required at award or {[[Page 533]]} commitment, covering activities occurring between December 23, 1989, and the date of award or commitment. However, for awards and commitments in process prior to the December 23, 1989 effective date of these provisions, but not made before December 23, 1989, disclosure forms shall not be required at time of award or commitment but shall be filed within 30 days. (h) No reporting is required for an activity paid for with appropriated funds if that activity is allowable under either subpart B or C. [55 FR 6737, 6750, Feb. 26, 1990, as amended at 59 FR 5321, Feb. 4, 1994]
Subpart B_Activities by Own Employees
Sec. 87.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in SEC. 87.100 (a), does not apply in the case of a payment of
Sec. 87.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in SEC. 87.100 (a), does not apply in the case of a payment of
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reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or an extension, continuation, renewal, amendment, or modification of a Federal contract, grant, loan, or cooperative agreement if payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement. (b) For purposes of paragraph (a) of this section, professional and technical services shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable {[[Page 534]]} under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation
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or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action. (c) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents. (d) Only those services expressly authorized by this section are allowable under this section.
Sec. 87.210 Reporting.
No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.
Subpart C_Activities by Other Than Own Employees
Sec. 87.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in SEC. 87.100 (a), does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement. (b) The reporting requirements in SEC. 87.110 (a) and (b) regarding filing a disclosure form by each person, if required, shall not apply with respect to professional or technical services rendered directly in the preparation, submission, or negotiation of
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receiving a covered Federal action include consultants and trade associations. (f) Only those services expressly authorized by this section are allowable under this section.
any commitment providing for the United States to insure or guarantee a loan. (c) For purposes of paragraph (a) of this section, professional and technical services shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting or a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action. {[[Page 535]]} (d) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents. (e) Persons other than officers or employees of a person requesting or
Subpart D_Penalties and Enforcement
Sec. 87.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure. (b) Any person who fails to file or amend the disclosure form (see appendix B) to be filed or amended if required herein, shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c) A filing or amended filing on or after the date on which an administrative action for the imposition of a civil penalty is commenced does not prevent the imposition of such civil penalty for a failure occurring before that date. An administrative action is commenced with respect to a failure when an investigating official determines in writing to commence an investigation of an allegation of such failure. (d) In determining whether to impose a civil penalty, and the amount of any such penalty, by reason of a violation by any person, the agency shall consider the nature, circumstances, extent, and gravity of the violation, the effect on the ability of such person to continue in business, any prior violations by such person, the degree of culpability of such person, the ability of the person to pay the penalty, and such other matters as may be appropriate. (e) First offenders under paragraphs (a) or (b) of this section shall be subject to a civil penalty of $10,000, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $10,000 and $100,000, as determined by the agency head or his or her designee.
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(f) An imposition of a civil penalty under this section does not prevent the United States from seeking any other remedy that may apply to the same conduct that is the basis for the imposition of such civil penalty.
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Sec. 87.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these provisions are not inconsistent with the requirements herein.
Sec. 87.410 Enforcement.
The head of each agency shall take such actions as are necessary to ensure that the provisions herein are vigorously implemented and enforced in that agency.
Subpart E_Exemptions
Sec. 87.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a covered Federal action from the prohibition whenever the Secretary determines, in writing, that such an exemption is in the national interest. The Secretary shall transmit a copy of each such written exemption to Congress immediately after making such a determination. (b) The Department of Defense may issue supplemental regulations to implement paragraph (a) of this section.
Subpart F_Agency Reports
Sec. 87.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure reports (see appendix B) and, on May 31 and November 30 of each year, submit to the Secretary of the Senate and the Clerk of the
House of Representatives a report containing a compilation of the {[[Page 536]]} information contained in the disclosure reports received during the sixmonth period ending on March 31 or September 30, respectively, of that year. (b) The report, including the compilation, shall be available for public inspection 30 days after receipt of the report by the Secretary and the Clerk. (c) Information that involves intelligence matters shall be reported only to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection. (d) Information that is classified under Executive Order 12356 or any successor order shall be reported only to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives or the Committees on Armed Services of the Senate and the House of Representatives (whichever such committees have jurisdiction of matters involving such information) and to the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection. (e) The first semi-annual compilation shall be submitted on May 31, 1990, and shall contain a compilation of the disclosure reports received from December 23, 1989 to March 31, 1990. (f) Major agencies, designated by the Office of Management and Budget (OMB), are required to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives no later than with the compilations due on May 31, 1991. OMB shall provide detailed specifications in a memorandum to these agencies.
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influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the {[[Page 537]]} extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, ``Disclosure Form to Report Lobbying,'' in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Statement for Loan Guarantees and Loan Insurance The undersigned states, to the best of his or her knowledge and belief, that: If any funds have been paid or will be paid to any person for influencing or
(g) Non-major agencies are requested to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives. (h) Agencies shall keep the originals of all disclosure reports in the official files of the agency.
Sec. 87.605 Inspector General report.
(a) The Inspector General, or other official as specified in paragraph (b) of this section, of each agency shall prepare and submit to Congress each year, commencing with submission of the President's Budget in 1991, an evaluation of the compliance of that agency with, and the effectiveness of, the requirements herein. The evaluation may include any recommended changes that may be necessary to strengthen or improve the requirements. (b) In the case of an agency that does not have an Inspector General, the agency official comparable to an Inspector General shall prepare and submit the annual report, or, if there is no such comparable official, the head of the agency shall prepare and submit the annual report. (c) The annual report shall be submitted at the same time the agency submits its annual budget justifications to Congress. (d) The annual report shall include the following: All alleged violations relating to the agency's covered Federal actions during the year covered by the report, the actions taken by the head of the agency in the year covered by the report with respect to those alleged violations and alleged violations in previous years, and the amounts of civil penalties imposed by the agency in the year covered by the report. Appendix A to Part 87--Certification Regarding Lobbying Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for
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attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, ``Disclosure Form to Report Lobbying,'' in accordance with its instructions. Submission of this statement is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required statement shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. {[[Page 538]]} Appendix B to Part 87--Disclosure Form to Report Lobbying [GRAPHIC] [TIFF OMITTED] TC12OC91.004 {[[Page 539]]} [GRAPHIC] [TIFF OMITTED] TC12OC91.005 {[[Page 540]]} [GRAPHIC] [TIFF OMITTED] TC12OC91.006 {[[Page 541]]}
24 CFR 135 Economic Opportunities For LowAnd Very Low-Income Persons
[Code of Federal Regulations] [Title 24, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 708-726] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER I--OFFICE OF ASSISTANT SECRETARY FOR EQUAL OPPORTUNITY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 135_ECONOMIC OPPORTUNITIES FOR LOW- AND VERY LOW-INCOME PERSONS Subpart A_General Provisions 135.1 Purpose. 135.2 Effective date of regulation. 135.3 Applicability. 135.5 Definitions. 135.7 Delegation of authority. 135.9 Requirements applicable to HUD NOFAs for section 3 covered programs. 135.11 Other laws governing training, employment, and contracting. Subpart B_Economic Opportunities for Section 3 Residents and Section 3 Business Concerns 135.30 Numerical goals for meeting the greatest extent feasible requirement. 135.32 Responsibilities of the recipient. 135.34 Preference for section 3 residents in training and employment opportunities. 135.36 Preference for section 3 business concerns in contracting opportunities. 135.38 Section 3 clause.
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regulations, be directed to low- and very low-income persons, particularly those who are recipients of government assistance for housing, and to business concerns which provide economic opportunities to low- and very lowincome persons. (b) Part 135. The purpose of this part is to establish the standards and procedures to be followed to ensure that the objectives of section 3 are met.
135.40 Providing other economic opportunities. Subpart C [Reserved] Subpart D_Complaint and Compliance Review 135.70 General. 135.72 Cooperation in achieving compliance. 135.74 Section 3 compliance review procedures. 135.76 Filing and processing complaints. Subpart E_Reporting and Recordkeeping 135.90 Reporting. 135.92 Recordkeeping and access to records. Appendix to Part 135 Authority: 12 U.S.C. 1701u; 42 U.S.C. 3535(d). Source: 59 FR 33880, June 30, 1994, unless otherwise noted. Effective Date Note: At 59 FR 33880, June 30, 1994, part 135 was revised effective August 1, 1994 through June 30, 1995. At 60 FR 28325, May 31, 1995, the effective period was extended until the final rule implementing changes made to section 3 of the Housing and Urban Development Act of 1968 by the Housing and Community Development Act of 1992 is published and becomes effective.
Sec. 135.2 Effective date of regulation.
The regulations of this part will remain in effect until the date the final rule adopting the regulations of this part with or without changes is published and becomes effective, at which point the final rule will remain in effect. [60 FR 28326, May 31, 1995]
Sec. 135.3 Applicability.
(a) Section 3 covered assistance. Section 3 applies to the following HUD assistance (section 3 covered assistance): (1) Public and Indian housing assistance. Section 3 applies to training, employment, contracting and other economic opportunities arising from the expenditure of the following public and Indian housing assistance: (i) Development assistance provided pursuant to section 5 of the U.S. Housing Act of 1937 (1937 Act); (ii) Operating assistance provided pursuant to section 9 of the 1937 Act; and {[[Page 709]]} (iii) Modernization assistance provided pursuant to section 14 of the 1937 Act; (2) Housing and community development assistance. Section 3 applies to training, employment, contracting and other economic opportunities arising in connection with the expenditure of housing assistance (including section 8 assistance, and including other housing assistance not administered by the Assistant Secretary of Housing) and community development
Subpart A_General Provisions
Sec. 135.1 Purpose.
(a) Section 3. The purpose of section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) (section 3) is to ensure that employment and other economic opportunities generated by certain HUD financial assistance shall, to the greatest extent feasible, and consistent with existing Federal, State and local laws and
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assistance that is used for the following projects; (i) Housing rehabilitation (including reduction and abatement of lead-based paint hazards, but excluding routine maintenance, repair and replacement); (ii) Housing construction; and (iii) Other public construction. (3) Thresholds--(i) No thresholds for section 3 covered public and Indian housing assistance. The requirements of this part apply to section 3 covered assistance provided to recipients, notwithstanding the amount of the assistance provided to the recipient. The requirements of this part apply to all contractors and subcontractors performing work in connection with projects and activities funded by public and Indian housing assistance covered by section 3, regardless of the amount of the contract or subcontract. (ii) Thresholds for section 3 covered housing and community development assistance--(A) Recipient thresholds. The requirements of this part apply to recipients of other housing and community development program assistance for a section 3 covered project(s) for which the amount of the assistance exceeds $200,000. (B) Contractor and subcontractor thresholds. The requirements of this part apply to contractors and subcontractors performing work on section 3 covered project(s) for which the amount of the assistance exceeds $200,000; and the contract or subcontract exceeds $100,000. (C) Threshold met for recipients, but not contractors or subcontractors. If a recipient receives section 3 covered housing or community development assistance in excess of $200,000, but no contract exceeds $100,000, the section 3 preference requirements only apply to the recipient. (b) Applicability of section 3 to entire project or activity funded with section 3 assistance. The requirements of this part apply to the entire project or activity that is funded with section 3 covered assistance, regardless of whether the section 3 activity is fully or partially funded with section 3 covered assistance. (c) Applicability to Indian housing authorities and Indian tribes. Indian housing authorities and tribes that receive HUD assistance described in paragraph (a) of this section shall comply with the procedures and requirements of this part to the maximum extent consistent with, but not in derogation of, compliance with section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e(b)). (See 24 CFR part 905.) (d) Other HUD assistance and other Federal assistance. Recipients, contractors and subcontractors that receive HUD assistance, not listed in paragraph (a) of this section, or other Federal assistance, are encouraged to provide, to the greatest extent feasible, training, employment, and contracting opportunities generated by the expenditure of this assistance to low- and very low-income persons, and business concerns owned by low- and very lowincome persons, or which employ low- and very low-income persons.
Sec. 135.5 Definitions.
The terms Department, HUD, Indian housing authority (IHA), Public housing agency (PHA), and Secretary are defined in 24 CFR part 5. Annual Contributions Contract (ACC) means the contract under the U.S. Housing Act of 1937 (1937 Act) between HUD and the PHA, or between HUD and the IHA, that contains the terms and conditions under which HUD assists the PHA or the IHA in providing decent, safe, and sanitary housing for low income families. The ACC must be in a form prescribed by HUD under which HUD agrees to provide assistance in the development, modernization and/or operation of a low income housing project under the 1937 Act, and the PHA or IHA agrees to develop, modernize and operate the project in compliance with all provisions of the {[[Page 710]]} ACC and the 1937 Act, and all HUD regulations and implementing requirements and procedures. (The ACC is not a form of procurement contract.)
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work write-ups; and jobs directly related to administrative support of these activities, e.g., construction manager, relocation specialist, payroll clerk, etc. Housing authority (HA) means, collectively, public housing agency and Indian housing authority. Housing and community development assistance means any financial assistance provided or otherwise made available through a HUD housing or community development program through any grant, loan, loan guarantee, cooperative agreement, or contract, and includes community development funds in the form of community development block grants, and loans guaranteed under section 108 of the Housing and Community Development Act of 1974, as amended. Housing and community development assistance does not include financial assistance provided through a contract of insurance or guaranty. Housing development means lowincome housing owned, developed, or operated by public housing agencies or Indian housing authorities in accordance with HUD's public and Indian housing program regulations codified in 24 CFR Chapter IX. HUD Youthbuild programs mean programs that receive assistance under subtitle D of Title IV of the National Affordable Housing Act, as amended by the Housing and Community Development Act of 1992 (42 U.S.C. 12899), and provide disadvantaged youth with opportunities for employment, education, leadership development, and training in the construction or rehabilitation of housing for homeless individuals and members of lowand very low-income families. Indian tribes shall have the meaning given this term in 24 CFR part 571. JTPA means the Job Training Partnership Act (29 U.S.C. 1579(a)). Low-income person. See the definition of ``section 3 resident'' in this section. Metropolitan area means a metropolitan statistical area (MSA), as established by the Office of Management and Budget.
Applicant means any entity which makes an application for section 3 covered assistance, and includes, but is not limited to, any State, unit of local government, public housing agency, Indian housing authority, Indian tribe, or other public body, public or private nonprofit organization, private agency or institution, mortgagor, developer, limited dividend sponsor, builder, property manager, community housing development organization (CHDO), resident management corporation, resident council, or cooperative association. Assistant Secretary means the Assistant Secretary for Fair Housing and Equal Opportunity. Business concern means a business entity formed in accordance with State law, and which is licensed under State, county or municipal law to engage in the type of business activity for which it was formed. Business concern that provides economic opportunities for low- and very low-income persons. See definition of ``section 3 business concern'' in this section. Contract. See the definition of ``section 3 covered contract'' in this section. Contractor means any entity which contracts to perform work generated by the expenditure of section 3 covered assistance, or for work in connection with a section 3 covered project. Employment opportunities generated by section 3 covered assistance means all employment opportunities generated by the expenditure of section 3 covered public and Indian housing assistance (i.e., operating assistance, development assistance and modernization assistance, as described in SEC. 135.3(a)(1)). With respect to section 3 covered housing and community development assistance, this term means all employment opportunities arising in connection with section 3 covered projects (as described in SEC. 135.3(a)(2)), including management and administrative jobs connected with the section 3 covered project. Management and administrative jobs include architectural, engineering or related professional services required to prepare plans, drawings, specifications, or
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Neighborhood area means: {[[Page 711]]} (1) For HUD housing programs, a geographical location within the jurisdiction of a unit of general local government (but not the entire jurisdiction) designated in ordinances, or other local documents as a neighborhood, village, or similar geographical designation. (2) For HUD community development programs, see the definition, if provided, in the regulations for the applicable community development program, or the definition for this term in 24 CFR 570.204(c)(1). New hires mean full-time employees for permanent, temporary or seasonal employment opportunities. Nonmetropolitan county means any county outside of a metropolitan area. Other HUD programs means HUD programs, other than HUD public and Indian housing programs, that provide housing and community development assistance for ``section 3 covered projects,'' as defined in this section. Public housing resident has the meaning given this term in 24 CFR part 963. Recipient means any entity which receives section 3 covered assistance, directly from HUD or from another recipient and includes, but is not limited to, any State, unit of local government, PHA, IHA, Indian tribe, or other public body, public or private nonprofit organization, private agency or institution, mortgagor, developer, limited dividend sponsor, builder, property manager, community housing development organization, resident management corporation, resident council, or cooperative association. Recipient also includes any successor, assignee or transferee of any such entity, but does not include any ultimate beneficiary under the HUD program to which section 3 applies and does not include contractors. Section 3 means section 3 of the Housing and Urban Development Act of 1968, as amended (12 U.S.C. 1701u). Section 3 business concern means a business concern, as defined in this section-(1) That is 51 percent or more owned by section 3 residents; or (2) Whose permanent, full-time employees include persons, at least 30 percent of whom are currently section 3 residents, or within three years of the date of first employment with the business concern were section 3 residents; or (3) That provides evidence of a commitment to subcontract in excess of 25 percent of the dollar award of all subcontracts to be awarded to business concerns that meet the qualifications set forth in paragraphs (1) or (2) in this definition of ``section 3 business concern.'' Section 3 clause means the contract provisions set forth in SEC. 135.38. Section 3 covered activity means any activity which is funded by section 3 covered assistance public and Indian housing assistance. Section 3 covered assistance means: (1) Public and Indian housing development assistance provided pursuant to section 5 of the 1937 Act; (2) Public and Indian housing operating assistance provided pursuant to section 9 of the 1937 Act; (3) Public and Indian housing modernization assistance provided pursuant to section 14 of the 1937 Act; (4) Assistance provided under any HUD housing or community development program that is expended for work arising in connection with: (i) Housing rehabilitation (including reduction and abatement of lead-based paint hazards, but excluding routine maintenance, repair and replacement); (ii) Housing construction; or (iii) Other public construction project (which includes other buildings or improvements, regardless of ownership). Section 3 covered contract means a contract or subcontract (including a professional service contract) awarded by a recipient or contractor for work generated by the expenditure of section 3 covered assistance, or for work arising in connection with a section 3 covered project. ``Section 3 covered contracts'' do not include contracts
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of the 1937 Act (42 U.S.C. 1437a(b)(2)) defines this term to mean families (including single persons) whose incomes do not exceed 50 per centum of the median family income for the area, as determined by the Secretary with adjustments for smaller and larger families, except that the Secretary may establish income ceilings higher or lower than 50 per centum of the median for the area on the basis of the Secretary's findings that such variations are necessary because of unusually high or low family incomes. (3) A person seeking the training and employment preference provided by section 3 bears the responsibility of providing evidence (if requested) that the person is eligible for the preference. Section 8 assistance means assistance provided under section 8 of the 1937 Act (42 U.S.C. 1437f) pursuant to 24 CFR part 882, subpart G. Service area means the geographical area in which the persons benefitting from the section 3 covered project reside. The service area shall not extend beyond the unit of general local government in which the section 3 covered assistance is expended. In HUD's Indian housing programs, the service area, for IHAs established by an Indian tribe as a result of the exercise of the tribe's sovereign power, is limited to the area of tribal jurisdiction. Subcontractor means any entity (other than a person who is an employee of the contractor) which has a contract with a contractor to undertake a portion of the contractor's obligation for the performance of work generated by the expenditure of section 3 covered assistance, or arising in connection with a section 3 covered project. Very low-income person. See the definition of ``section 3 resident'' in this section. Youthbuild programs. See the definition of ``HUD Youthbuild programs'' in this section. [59 FR 33880, June 30, 1994, as amended at 61 FR 5206, Feb. 9, 1996]
awarded under HUD's procurement program, which are governed by the Federal Acquisition Regulation System (see 48 CFR, Chapter 1). ``Section 3 covered contracts'' also do not include contracts for the purchase of supplies and materials. However, whenever a contract for materials includes the installation of the materials, the contract constitutes a section 3 covered contract. For example, a contract for the {[[Page 712]]} purchase and installation of a furnace would be a section 3 covered contract because the contract is for work (i.e., the installation of the furnace) and thus is covered by section 3. Section 3 covered project means the construction, reconstruction, conversion or rehabilitation of housing (including reduction and abatement of lead-based paint hazards), other public construction which includes buildings or improvements (regardless of ownership) assisted with housing or community development assistance. Section 3 joint venture. See SEC. 135.40. Section 3 resident means: (1) A public housing resident; or (2) An individual who resides in the metropolitan area or nonmetropolitan county in which the section 3 covered assistance is expended, and who is: (i) A low-income person, as this term is defined in section 3(b)(2) of the 1937 Act (42 U.S.C. 1437a(b)(2)). Section 3(b)(2) of the 1937 Act defines this term to mean families (including single persons) whose incomes do not exceed 80 per centum of the median income for the area, as determined by the Secretary, with adjustments for smaller and larger families, except that the Secretary may establish income ceilings higher or lower than 80 per centum of the median for the area on the basis of the Secretary's findings that such variations are necessary because of prevailing levels of construction costs or unusually high or lowincome families; or (ii) A very low-income person, as this term is defined in section 3(b)(2) of the 1937 Act (42 U.S.C. 1437a(b)(2)). Section 3(b)(2)
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Sec. 135.7 Delegation of authority.
Except as may be otherwise provided in this part, the functions and responsibilities of the Secretary under section 3, and described in this part, are delegated to the Assistant Secretary for Fair Housing and Equal Opportunity. The Assistant Secretary is further authorized to redelegate functions and responsibilities to other employees of HUD; provided however, that the authority to issue rules and regulations under this part, which authority is delegated to the Assistant Secretary, may not be redelegated by the Assistant Secretary. {[[Page 713]]}
Sec. 135.9 Requirements applicable to HUD NOFAs for section 3 covered programs.
(a) Certification of compliance with part 135. All notices of funding availability (NOFAs) issued by HUD that announce the availability of funding covered by section 3 shall include a provision in the NOFA that notifies applicants that section 3 and the regulations in part 135 are applicable to funding awards made under the NOFA. Additionally the NOFA shall require as an application submission requirement (which may be specified in the NOFA or application kit) a certification by the applicant that the applicant will comply with the regulations in part 135. (For PHAs, this requirement will be met where a PHA Resolution in Support of the Application is submitted.) With respect to application evaluation, HUD will accept an applicant's certification unless there is evidence substantially challenging the certification. (b) Statement of purpose in NOFAs. (1) For competitively awarded assistance in which the grants are for activities administered by an HA, and those activities are anticipated to generate significant training, employment or contracting opportunities, the NOFA must include a statement that one of the purposes of the assistance is to give to the greatest extent feasible, and consistent with existing
Federal, State and local laws and regulations, job training, employment, contracting and other economic opportunities to section 3 residents and section 3 business concerns. (2) For competitively awarded assistance involving housing rehabilitation, construction or other public construction, where the amount awarded to the applicant may exceed $200,000, the NOFA must include a statement that one of the purposes of the assistance is to give, to the greatest extent feasible, and consistent with existing Federal, State and local laws and regulations, job training, employment, contracting and other economic opportunities to section 3 residents and section 3 business concerns. (c) Section 3 as NOFA evaluation criteria. Where not otherwise precluded by statute, in the evaluation of applications for the award of assistance, consideration shall be given to the extent to which an applicant has demonstrated that it will train and employ section 3 residents and contract with section 3 business concerns for economic opportunities generated in connection with the assisted project or activity. The evaluation criteria to be utilized, and the rating points to be assigned, will be specified in the NOFA.
Sec. 135.11 Other laws governing training, employment, and contracting.
Other laws and requirements that are applicable or may be applicable to the economic opportunities generated from the expenditure of section 3 covered assistance include, but are not necessarily limited to those listed in this section. (a) Procurement standards for States and local governments (24 CFR 85.36)--(1) General. Nothing in this part 135 prescribes specific methods of procurement. However, neither section 3 nor the requirements of this part 135 supersede the general requirement of 24 CFR 85.36(c) that all procurement transactions be conducted in a competitive manner. Consistent with 24 CFR
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ratios of apprentices or trainees to journeymen set out in ``approved apprenticeship and training programs,'' as described in paragraph (d) of this section. (d) Approved apprenticeship and trainee programs. Certain apprenticeship and trainee programs have been approved by various Federal agencies. Approved apprenticeship and trainee programs include: an apprenticeship program approved by the Bureau of Apprenticeship and Training of the Department of Labor, or a State Apprenticeship Agency, or an on-the-job training program approved by the Bureau of Apprenticeship and Training, in accordance with the regulations at 29 CFR part 5; or a training program approved by HUD in accordance with HUD policies and guidelines, as applicable. Participation in an approved apprenticeship program does not, in and of itself, demonstrate compliance with the regulations of this part. (e) Compliance with Executive Order 11246. Certain contractors covered by this part are subject to compliance with Executive Order 11246, as amended by Executive Order 12086, and the Department of Labor regulations issued pursuant thereto (41 CFR chapter 60) which provide that no person shall be discriminated against on the basis of race, color, religion, sex, or national origin in all phases of employment during the performance of Federal or Federally assisted construction contracts.
85.36(c)(2), section 3 is a Federal statute that expressly encourages, to the maximum extent feasible, a geographic preference in the evaluation of bids or proposals. (2) Flexible Subsidy Program. Multifamily project mortgagors in the Flexible Subsidy Program are not required to utilize the methods of procurement in 24 CFR 85.36(d), and are not permitted to utilize methods of procurement that would result in their award of a contract to a business concern that submits a bid higher than the lowest responsive bid. A multifamily project mortgagor, however, must ensure that, to the greatest extent feasible, the procurement practices it selects provide preference to section 3 business concerns. (b) Procurement standards for other recipients (OMB Circular No. A110). Nothing in this part prescribes specific methods of procurement for grants and other agreements with institutions of higher education, hospitals, and other nonprofit organizations. Consistent with the requirements set forth in OMB Circular No. A-110, section 3 is a {[[Page 714]]} Federal statute that expressly encourages a geographic preference in the evaluation of bids or proposals. (c) Federal labor standards provisions. Certain construction contracts are subject to compliance with the requirement to pay prevailing wages determined under DavisBacon Act (40 U.S.C. 276a--276a7) and implementing U.S. Department of Labor regulations in 29 CFR part 5. Additionally, certain HUD-assisted rehabilitation and maintenance activities on public and Indian housing developments are subject to compliance with the requirement to pay prevailing wage rates, as determined or adopted by HUD, to laborers and mechanics employed in this work. Apprentices and trainees may be utilized on this work only to the extent permitted under either Department of Labor regulations at 29 CFR part 5 or for work subject to HUDdetermined prevailing wage rates, HUD policies and guidelines. These requirements include adherence to the wage rates and
Subpart B_Economic Opportunities for Section 3 Residents and Section 3 Business Concerns
Sec. 135.30 Numerical goals for meeting the greatest extent feasible requirement.
(a) General. (1) Recipients and covered contractors may demonstrate compliance with the ``greatest extent feasible'' requirement of section 3 by meeting the numerical goals set forth in this section for providing training, employment, and
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contracting opportunities to section 3 residents and section 3 business concerns. (2) The goals established in this section apply to the entire amount of section 3 covered assistance awarded to a recipient in any Federal Fiscal Year (FY), commencing with the first FY following the effective date of this rule. (3) For recipients that do not engage in training, or hiring, but award contracts to contractors that will engage in training, hiring, and subcontracting, recipients must ensure that, to the greatest extent feasible, contractors will provide training, employment, and contracting opportunities to section 3 residents and section 3 business concerns. (4) The numerical goals established in this section represent minimum numerical targets. (b) Training and employment. The numerical goals set forth in paragraph (b) of this section apply to new hires. The numerical goals reflect the aggregate hires. Efforts to employ section 3 residents, to the greatest extent feasible, should be made at all job levels. (1) Numerical goals for section 3 covered public and Indian housing programs. Recipients of section 3 covered public and Indian housing assistance (as described in SEC. 135.5) and their contractors and subcontractors may demonstrate compliance with this part by committing to employ section 3 residents as: {[[Page 715]]} (i) 10 percent of the aggregate number of new hires for the one year period beginning in FY 1995; (ii) 20 percent of the aggregate number of new hires for the one period beginning in FY 1996; (iii) 30 percent of the aggregate number of new hires for one year period beginning in FY 1997 and continuing thereafter. (2) Numerical goals for other HUD programs covered by section 3. (i) Recipients of section 3 covered housing assistance provided under other HUD programs, and their contractors and subcontractors (unless the contract or subcontract awards do not meet the threshold specified in SEC. 135.3(a)(3)) may demonstrate compliance with this part by committing to employ section 3 residents as 10 percent of the aggregate number of new hires for each year over the duration of the section 3 project; (ii) Where a managing general partner or management agent is affiliated, in a given metropolitan area, with recipients of section 3 covered housing assistance, for an aggregate of 500 or more units in any fiscal year, the managing partner or management agent may demonstrate compliance with this part by committing to employ section 3 residents as: (A) 10 percent of the aggregate number of new hires for the one year period beginning in FY 1995; (B) 20 percent of the aggregate number of new hires for the one year period beginning in FY 1996; (C) 30 percent of the aggregate number of new hires for the one year period beginning in FY 1997, and continuing thereafter. (3) Recipients of section 3 covered community development assistance, and their contractors and subcontractors (unless the contract or subcontract awards do not meet the threshold specified in SEC. 135.3(a)(3)) may demonstrate compliance with the requirements of this part by committing to employ section 3 residents as: (i) 10 percent of the aggregate number of new hires for the one year period beginning in FY 1995; (ii) 20 percent of the aggregate number of new hires for the one year period beginning in FY 1996; and (iii) 30 percent of the aggregate number of new hires for the one year period beginning in FY 1997 and continuing thereafter. (c) Contracts. Numerical goals set forth in paragraph (c) of this section apply to contracts awarded in connection with all section 3 covered projects and section 3 covered activities. Each recipient and contractor and subcontractor (unless the contract or subcontract awards do not meet
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business concerns about contracting opportunities generated by section 3 covered assistance; (b) Notifying potential contractors for section 3 covered projects of the requirements of this part, and incorporating the section 3 clause set forth in SEC. 135.38 in all solicitations and contracts. (c) Facilitating the training and employment of section 3 residents and the award of contracts to section 3 business concerns by undertaking activities such as described in the Appendix to this part, as appropriate, to reach the goals set forth in SEC. 135.30. Recipients, at their own discretion, may establish reasonable numerical goals for the training and employment of section 3 residents and contract award to section 3 business concerns that exceed those specified in SEC. 135.30; (d) Assisting and actively cooperating with the Assistant Secretary in obtaining the compliance of contractors and subcontractors with the requirements of this part, and refraining from entering into any contract with any contractor where the recipient has notice or knowledge that the contractor has been found in violation of the regulations in 24 CFR part 135. (e) Documenting actions taken to comply with the requirements of this part, the results of actions taken and impediments, if any. (f) A State or county which distributes funds for section 3 covered assistance to units of local governments, to the greatest extent feasible, must attempt to reach the numerical goals set forth in 135.30 regardless of the number of local governments receiving funds from the section 3 covered assistance which meet the thresholds for applicability set forth at 135.3. The State or county must inform units of local government to whom funds are distributed of the requirements of this part; assist local governments and their contractors in meeting the requirements and objectives of this part; and monitor the performance of local governments with
the threshold specified in SEC. 135.3(a)(3)) may demonstrate compliance with the requirements of this part by committing to award to section 3 business concerns: (1) At least 10 percent of the total dollar amount of all section 3 covered contracts for building trades work for maintenance, repair, modernization or development of public or Indian housing, or for building trades work arising in connection with housing rehabilitation, housing construction and other public construction; and (2) At least three (3) percent of the total dollar amount of all other section 3 covered contracts. (d) Safe harbor and compliance determinations. (1) In the absence of evidence to the contrary, a recipient that meets the minimum numerical goals set forth in this section will be considered to have complied with the section 3 preference requirements. (2) In evaluating compliance under subpart D of this part, a recipient that has not met the numerical goals set forth in this section has the burden of demonstrating why it was not feasible to meet the numerical goals set forth in this section. Such justification may include impediments encountered despite actions taken. A recipient or contractor also can indicate other economic opportunities, such as those listed in SEC. 135.40, which were provided in its efforts to comply with section 3 and the requirements of this part.
Sec. 135.32 Responsibilities of the recipient.
Each recipient has the responsibility to comply with section 3 in its own operations, and ensure compliance in the {[[Page 716]]} operations of its contractors and subcontractors. This responsibility includes but may not be necessarily limited to: (a) Implementing procedures designed to notify section 3 residents about training and employment opportunities generated by section 3 covered assistance and section 3
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respect to the objectives and requirements of this part. Homeless Assistance Act (42 U.S.C. 11301 et seq.), homeless persons residing in the service area or neighborhood in which the section 3 covered project is located shall be given the highest priority; {[[Page 717]]} (iv) Other section 3 residents. (3) Recipients of housing assistance programs administered by the Assistant Secretary for Housing may, at their own discretion, provide preference to residents of the housing development receiving the section 3 covered assistance within the service area or neighborhood where the section 3 covered project is located. (4) Recipients of community development programs may, at their own discretion, provide priority to recipients of government assistance for housing, including recipients of certificates or vouchers under the Section 8 housing assistance program, within the service area or neighborhood where the section 3 covered project is located. (b) Eligibility for preference. A section 3 resident seeking the preference in training and employment provided by this part shall certify, or submit evidence to the recipient contractor or subcontractor, if requested, that the person is a section 3 resident, as defined in SEC. 135.5. (An example of evidence of eligibility for the preference is evidence of receipt of public assistance, or evidence of participation in a public assistance program.) (c) Eligibility for employment. Nothing in this part shall be construed to require the employment of a section 3 resident who does not meet the qualifications of the position to be filled.
Sec. 135.34 Preference for section 3 residents in training and employment opportunities.
(a) Order of providing preference. Recipients, contractors and subcontractors shall direct their efforts to provide, to the greatest extent feasible, training and employment opportunities generated from the expenditure of section 3 covered assistance to section 3 residents in the order of priority provided in paragraph (a) of this section. (1) Public and Indian housing programs. In public and Indian housing programs, efforts shall be directed to provide training and employment opportunities to section 3 residents in the following order of priority: (i) Residents of the housing development or developments for which the section 3 covered assistance is expended (category 1 residents); (ii) Residents of other housing developments managed by the HA that is expending the section 3 covered housing assistance (category 2 residents); (iii) Participants in HUD Youthbuild programs being carried out in the metropolitan area (or nonmetropolitan county) in which the section 3 covered assistance is expended (category 3 residents); (iv) Other section 3 residents. (2) Housing and community development programs. In housing and community development programs, priority consideration shall be given, where feasible, to: (i) Section 3 residents residing in the service area or neighborhood in which the section 3 covered project is located (collectively, referred to as category 1 residents); and (ii) Participants in HUD Youthbuild programs (category 2 residents). (iii) Where the section 3 project is assisted under the Stewart B. McKinney
Sec. 135.36 Preference for section 3 business concerns in contracting opportunities.
(a) Order of providing preference. Recipients, contractors and subcontractors shall direct their efforts to award section 3 covered contracts, to the greatest extent feasible, to section 3 business concerns in the order of priority provided in paragraph (a) of this section.
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(b) Eligibility for preference. A business concern seeking to qualify for a section 3 contracting preference shall certify or submit evidence, if requested, that the business concern is a section 3 business concern as defined in SEC. 135.5. (c) Ability to complete contract. A section 3 business concern seeking a contract or a subcontract shall submit evidence to the recipient, contractor, or subcontractor (as applicable), if requested, sufficient to demonstrate to the satisfaction of the party awarding the contract that the business concern is responsible and has the ability to {[[Page 718]]} perform successfully under the terms and conditions of the proposed contract. (The ability to perform successfully under the terms and conditions of the proposed contract is required of all contractors and subcontractors subject to the procurement standards of 24 CFR 85.36 (see 24 CFR 85.36(b)(8)).) This regulation requires consideration of, among other factors, the potential contractor's record in complying with public policy requirements. Section 3 compliance is a matter properly considered as part of this determination.
(1) Public and Indian housing programs. In public and Indian housing programs, efforts shall be directed to award contracts to section 3 business concerns in the following order of priority: (i) Business concerns that are 51 percent or more owned by residents of the housing development or developments for which the section 3 covered assistance is expended, or whose full-time, permanent workforce includes 30 percent of these persons as employees (category 1 businesses); (ii) Business concerns that are 51 percent or more owned by residents of other housing developments or developments managed by the HA that is expending the section 3 covered assistance, or whose fulltime, permanent workforce includes 30 percent of these persons as employees (category 2 businesses); or (iii) HUD Youthbuild programs being carried out in the metropolitan area (or nonmetropolitan county) in which the section 3 covered assistance is expended (category 3 businesses). (iv) Business concerns that are 51 percent or more owned by section 3 residents, or whose permanent, full-time workforce includes no less than 30 percent section 3 residents (category 4 businesses), or that subcontract in excess of 25 percent of the total amount of subcontracts to business concerns identified in paragraphs (a)(1)(i) and (a)(1)(ii) of this section. (2) Housing and community development programs. In housing and community development programs, priority consideration shall be given, where feasible, to: (i) Section 3 business concerns that provide economic opportunities for section 3 residents in the service area or neighborhood in which the section 3 covered project is located (category 1 businesses); and (ii) Applicants (as this term is defined in 42 U.S.C. 12899) selected to carry out HUD Youthbuild programs (category 2 businesses); (iii) Other section 3 business concerns.
Sec. 135.38 Section 3 clause.
All section 3 covered contracts shall include the following clause (referred to as the section 3 clause): A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of this
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contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. G. With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian SelfDetermination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b).
Sec. 135.40 Providing other economic opportunities.
(a) General. In accordance with the findings of the Congress, as stated in section 3, that other economic opportunities offer an effective means of empowering low-income persons, a recipient is encouraged to undertake efforts to provide to low-income persons economic opportunities other than training, employment, and contract awards, in connection with section 3 covered assistance. (b) Other training and employment related opportunities. Other economic opportunities to train and employ section 3 residents include, but need not be limited to, use of ``upward mobility'', ``bridge'' and trainee positions to fill vacancies; hiring section 3 residents in {[[Page 719]]} management and maintenance positions within other housing developments; and hiring section 3 residents in part-time positions. (c) Other business related economic opportunities. (l) A recipient or contractor may provide economic opportunities to establish, stabilize or expand section 3 business concerns, including micro-
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(b) Definitions. For purposes of this subpart: (1) Complaint means an allegation of noncompliance with regulations of this part made in the form described in SEC. 135.76(d). (2) Complainant means the party which files a complaint with the Assistant Secretary alleging that a recipient or contractor has failed or refused to comply with the regulations in this part. (3) Noncompliance with section 3 means failure by a recipient or contractor to comply with the requirements of this part. (4) Respondent means the recipient or contractor against which a complaint of noncompliance has been filed. The term ``recipient'' shall have the meaning set forth in SEC. 135.7, which includes PHA and IHA.
enterprises. Such opportunities include, but are not limited to the formation of section 3 joint ventures, financial support for affiliating with franchise development, use of labor only contracts for building trades, purchase of supplies and materials from housing authority resident-owned businesses, purchase of materials and supplies from PHA resident-owned businesses and use of procedures under 24 CFR part 963 regarding HA contracts to HA resident-owned businesses. A recipient or contractor may employ these methods directly or may provide incentives to nonsection 3 businesses to utilize such methods to provide other economic opportunities to low-income persons. (2) A section 3 joint venture means an association of business concerns, one of which qualifies as a section 3 business concern, formed by written joint venture agreement to engage in and carry out a specific business venture for which purpose the business concerns combine their efforts, resources, and skills for joint profit, but not necessarily on a continuing or permanent basis for conducting business generally, and for which the section 3 business concern: (i) Is responsible for a clearly defined portion of the work to be performed and holds management responsibilities in the joint venture; and (ii) Performs at least 25 percent of the work and is contractually entitled to compensation proportionate to its work.
Sec. 135.72 Cooperation in achieving compliance.
(a) The Assistant Secretary recognizes that the success of ensuring that section 3 residents and section 3 business concerns have the opportunity to apply for jobs and to bid for contracts generated by covered HUD financial assistance depends upon the cooperation and assistance of HUD recipients and their contractors and subcontractors. All recipients shall cooperate fully and promptly with the Assistant Secretary in section 3 compliance reviews, in investigations of allegations of noncompliance made under SEC. 135.76, and with the distribution and collection of data and information that the Assistant Secretary may require in connection with achieving the economic objectives of section 3. (b) The recipient shall refrain from entering into a contract with any contractor after notification to the recipient by HUD that the contractor has been found in violation of the regulations in this part. The provisions of 24 CFR part 24 apply to the employment, engagement of services, awarding of contracts or funding of any
Subpart C [Reserved] Subpart D_Complaint and Compliance Review
Sec. 135.70 General.
(a) Purpose. The purpose of this subpart is to establish the procedures for handling complaints alleging noncompliance with the regulations of this part, and the procedures governing the Assistant Secretary's review of a recipient's or contractor's compliance with the regulations in this part.
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contractors or subcontractors during any period of {[[Page 720]]} debarment, suspension or otherwise ineligible status. regulations governing the HUD program under which HUD financial assistance is provided. HUD will notify the recipient of any continuing failure or refusal by the contractor to comply with the regulations in this part for possible action under any procurement contract between the recipient and the contractor. Debarment, suspension and limited denial of participation pursuant to HUD's regulations in 24 CFR part 24, where appropriate, may be applied to the recipient or the contractor. (e) Conducting compliance review before the award of assistance. Section 3 compliance reviews may be conducted before the award of contracts, and especially where the Assistant Secretary has reasonable grounds to believe that the recipient or contractor will be unable or unwilling to comply with the regulations in this part. (f) Consideration of complaints during compliance review. Complaints alleging noncompliance with section 3, as provided in SEC. 135.76, may also be considered during any compliance review conducted to determine the recipient's conformance with regulations in this part.
Sec. 135.74 Section 3 compliance review procedures.
(a) Compliance reviews by Assistant Secretary. The Assistant Secretary shall periodically conduct section 3 compliance reviews of selected recipients and contractors to determine whether these recipients are in compliance with the regulations in this part. (b) Form of compliance review. A section 3 compliance review shall consist of a comprehensive analysis and evaluation of the recipient's or contractor's compliance with the requirements and obligations imposed by the regulations of this part, including an analysis of the extent to which section 3 residents have been hired and section 3 business concerns have been awarded contracts as a result of the methods undertaken by the recipient to achieve the employment, contracting and other economic objectives of section 3. (c) Where compliance review reveals noncompliance with section 3 by recipient or contractor. Where the section 3 compliance review reveals that a recipient or contractor has not complied with section 3, the Assistant Secretary shall notify the recipient or contractor of its specific deficiencies in compliance with the regulations of this part, and shall advise the recipient or contractor of the means by which these deficiencies may be corrected. HUD shall conduct a follow-up review with the recipient or contractor to ensure that action is being taken to correct the deficiencies. (d) Continuing noncompliance by recipient or contractor. A continuing failure or refusal by the recipient or contractor to comply with the regulations in this part may result in the application of sanctions specified in the contract through which HUD assistance is provided, or the application of sanctions specified in the
Sec. 135.76 Filing and processing complaints.
(a) Who may file a complaint. The following individuals and business concerns may, personally or through an authorized representative, file with the Assistant Secretary a complaint alleging noncompliance with section 3: (1) Any section 3 resident on behalf of himself or herself, or as a representative of persons similarly situated, seeking employment, training or other economic opportunities generated from the expenditure of section 3 covered assistance with a recipient or contractor, or by a representative who is not a section 3 resident but who represents one or more section 3 residents; (2) Any section 3 business concern on behalf of itself, or as a representative of other section 3 business concerns similarly situated, seeking contract opportunities
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and send the form to the complainant for signature. (2) Amendment of complaint. Complaints may be reasonably and fairly amended at any time. Such amendments may include, but are not limited to, amendments to cure, technical defects or omissions, including failure to sign or affirm a complaint, to clarify or amplify the allegations in a complaint, or to join additional or substitute respondents. Except for the purposes of notifying respondents, amended complaints will be considered as having been made as of the original filing date. (e) Resolution of complaint by recipient. (1) Within ten (10) days of timely filing of a complaint that contains complete information (in accordance with paragraphs (c) and (d) of this section), the Assistant Secretary shall determine whether the complainant alleges an action or omission by a recipient or the recipient's contractor that if proven qualifies as noncompliance with section 3. If a determination is made that there is an allegation of noncompliance with section 3, the complaint shall be sent to the recipient for resolution. (2) If the recipient believes that the complaint lacks merit, the recipient must notify the Assistant Secretary in writing of this recommendation with supporting reasons, within 30 days of the date of receipt of the complaint. The determination that a complaint lacks merit is reserved to the Assistant Secretary. (3) If the recipient determines that there is merit to the complaint, the recipient will have sixty (60) days from the date of receipt of the complaint to resolve the matter with the complainant. At the expiration of the 60day period, the recipient must notify the Assistant Secretary in writing whether a resolution of the complaint has been reached. If resolution has been reached, the notification must be signed by both the recipient and the complainant, and must summarize the terms of the resolution reached between the two parties. (4) Any request for an extension of the 60-day period by the recipient must be
generated from the expenditure of section 3 covered assistance from a recipient or contractor, or by an individual representative of section 3 business concerns. (b) Where to file a complaint. A complaint must be filed with the Assistant Secretary for Fair Housing and Equal Opportunity, Department of Housing and Urban Development, Washington, DC, 20410. (c) Time of filing. (1) A complaint must be received not later than 180 days from the date of the action or omission upon which the complaint is {[[Page 721]]} based, unless the time for filing is extended by the Assistant Secretary for good cause shown. (2) Where a complaint alleges noncompliance with section 3 and the regulations of this part that is continuing, as manifested in a number of incidents of noncompliance, the complaint will be timely if filed within 180 days of the last alleged occurrence of noncompliance. (3) Where a complaint contains incomplete information, the Assistant Secretary shall request the needed information from the complainant. In the event this information is not furnished to the Assistant Secretary within sixty (60) days of the date of the request, the complaint may be closed. (d) Contents of complaint--(1) Written complaints. Each complaint must be in writing, signed by the complainant, and include: (i) The complainant's name and address; (ii) The name and address of the respondent; (iii) A description of the acts or omissions by the respondent that is sufficient to inform the Assistant Secretary of the nature and date of the alleged noncompliance. (iv) A complainant may provide information to be contained in a complaint by telephone to HUD or any HUD Field Office, and HUD will reduce the information provided by telephone to writing on the prescribed complaint form
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submitted in writing to the Assistant Secretary, and must include a statement explaining the need for the extension. (5) If the recipient is unable to resolve the complaint within the 60-day period (or more if extended by the Assistant Secretary), the complaint shall be referred to the Assistant Secretary for handling. (f) Informal resolution of complaint by Assistant Secretary--(1) Dismissal of complaint. Upon receipt of the recipient's written recommendation that there is no merit to the complaint, or upon failure of the recipient and complainant to reach resolution, the Assistant Secretary shall review the complaint to determine whether it presents a valid allegation of noncompliance with section 3. The Assistant Secretary may conduct further investigation if deemed necessary. Where the complaint fails to present a valid allegation of noncompliance with section 3, {[[Page 722]]} the Assistant Secretary will dismiss the complaint without further action. The Assistant Secretary shall notify the complainant of the dismissal of the complaint and the reasons for the dismissal. (2) Informal resolution. Where the allegations in a complaint on their face, or as amplified by the statements of the complainant, present a valid allegation of noncompliance with section 3, the Assistant Secretary will attempt, through informal methods, to obtain a voluntary and just resolution of the complaint. Where attempts to resolve the complaint informally fail, the Assistant Secretary will impose a resolution on the recipient and complainant. Any resolution imposed by the Assistant Secretary will be in accordance with requirements and procedures concerning the imposition of sanctions or resolutions as set forth in the regulations governing the HUD program under which the section 3 covered assistance was provided. (3) Effective date of informal resolution. The imposed resolution will become effective and binding at the expiration of 15 days following notification to recipient and complainant by certified mail of the imposed resolution, unless either party appeals the resolution before the expiration of the 15 days. Any appeal shall be in writing to the Secretary and shall include the basis for the appeal. (g) Sanctions. Sanctions that may be imposed on recipients that fail to comply with the regulations of this part include debarment, suspension and limited denial of participation in HUD programs. (h) Investigation of complaint. The Assistant Secretary reserves the right to investigate a complaint directly when, in the Assistant Secretary's discretion, the investigation would further the purposes of section 3 and this part. (i) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any person or business because the person or business has made a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing or judicial proceeding arising thereunder. (j) Judicial relief. Nothing in this subpart D precludes a section 3 resident or section 3 business concerning from exercising the right, which may otherwise be available, to seek redress directly through judicial procedures. (Approved by the Office of Management and Budget under control number 2529-0043)
Subpart E_Reporting and Recordkeeping
Sec. 135.90 Reporting.
Each recipient which receives directly from HUD financial assistance that is subject to the requirements of this part shall submit to the Assistant Secretary an annual report in such form and with such information as the Assistant Secretary may request, for the purpose of determining the effectiveness of section 3. Where the
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the housing development or developments where category 1 or category 2 persons (as these terms are defined in SEC. 135.34) reside. (5) Advertising the training and employment positions by posting flyers (which identify the positions to be filled, the qualifications required, and where to obtain additional information about the application process) in the common areas or other prominent areas of the housing development or developments. For HAs, post such advertising in the housing development or developments where category 1 or category 2 persons reside; for all other recipients, post such advertising in the housing development or developments and transitional housing in the neighborhood or service area of the section 3 covered project. (6) Contacting resident councils, resident management corporations, or other resident organizations, where they exist, in the housing development or developments where category 1 or category 2 persons reside, and community organizations in HUD-assisted neighborhoods, to request the assistance of these organizations in notifying residents of the training and employment positions to be filled. (7) Sponsoring (scheduling, advertising, financing or providing inkind services) a job informational meeting to be conducted by an HA or contractor representative or representatives at a location in the housing development or developments where category 1 or category 2 persons reside or in the neighborhood or service area of the section 3 covered project. (8) Arranging assistance in conducting job interviews and completing job applications for residents of the housing development or developments where category 1 or category 2 persons reside and in the neighborhood or service area in which a section 3 project is located. (9) Arranging for a location in the housing development or developments where category 1 persons reside, or the neighborhood or service area of the project, where job applications may be delivered to
program providing the section 3 covered assistance requires submission of an annual performance report, the section 3 report will be submitted with that annual performance report. If the program providing the section 3 covered assistance does not require an annual performance report, the section 3 report is to be submitted by January 10 of each year or within 10 days of project completion, whichever is earlier. All reports submitted to HUD in accordance with the requirements of this part will be made available to the public. (Approved by the Office of Management and Budget under control number 2529-0043)
Sec. 135.92 Recordkeeping and access to records.
HUD shall have access to all records, reports, and other documents or items of the recipient that are maintained to demonstrate compliance with the requirements of this part, or that are maintained in accordance with the regulations governing the specific HUD program under which section 3 covered assistance is provided or otherwise made available to the recipient or contractor. {[[Page 723]]} Appendix to Part 135 I. Examples of Efforts To Offer Training and Employment Opportunities to Section 3 Residents (1) Entering into ``first source'' hiring agreements with organizations representing Section 3 residents. (2) Sponsoring a HUD-certified ``StepUp'' employment and training program for section 3 residents. (3) Establishing training programs, which are consistent with the requirements of the Department of Labor, for public and Indian housing residents and other section 3 residents in the building trades. (4) Advertising the training and employment positions by distributing flyers (which identify the positions to be filled, the qualifications required, and where to obtain additional information about the application process) to every occupied dwelling unit in
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and collected by a recipient or contractor representative or representatives. (10) Conducting job interviews at the housing development or developments where category 1 or category 2 persons reside, or at a location within the neighborhood or service area of the section 3 covered project. (11) Contacting agencies administering HUD Youthbuild programs, and requesting their assistance in recruiting HUD Youthbuild program participants for the HA's or contractor's training and employment positions. (12) Consulting with State and local agencies administering training programs funded through JTPA or JOBS, probation and parole agencies, unemployment compensation programs, community organizations and other officials or organizations to assist with recruiting Section 3 residents for the HA's or contractor's training and employment positions. (13) Advertising the jobs to be filled through the local media, such as community television networks, newspapers of general circulation, and radio advertising. (14) Employing a job coordinator, or contracting with a business concern that is licensed in the field of job placement (preferably one of the section 3 business concerns identified in part 135), that will undertake, on behalf of the HA, other recipient or contractor, the efforts to match eligible and qualified section 3 residents with the training and employment positions that the HA or contractor intends to fill. (15) For an HA, employing section 3 residents directly on either a permanent or a temporary basis to perform work generated by section 3 assistance. (This type of employment is referred to as ``force account labor'' in HUD's Indian housing regulations. See 24 CFR 905.102, and SEC. 905.201(a)(6).) (16) Where there are more qualified section 3 residents than there are positions to be filled, maintaining a file of eligible qualified section 3 residents for future employment positions. (17) Undertaking job counseling, education and related programs in association with local educational institutions. (18) Undertaking such continued job training efforts as may be necessary to ensure the continued employment of section 3 residents previously hired for employment opportunities. (19) After selection of bidders but prior to execution of contracts, incorporating into the contract a negotiated provision for a specific number of public housing or other section 3 residents to be trained or employed on the section 3 covered assistance. {[[Page 724]]} (20) Coordinating plans and implementation of economic development (e.g., job training and preparation, business development assistance for residents) with the planning for housing and community development. II. Examples of Efforts To Award Contracts to Section 3 Business Concerns (1) Utilizing procurement procedures for section 3 business concerns similar to those provided in 24 CFR part 905 for business concerns owned by Native Americans (see section III of this Appendix). (2) In determining the responsibility of potential contractors, consider their record of section 3 compliance as evidenced by past actions and their current plans for the pending contract. (3) Contacting business assistance agencies, minority contractors associations and community organizations to inform them of contracting opportunities and requesting their assistance in identifying section 3 businesses which may solicit bids or proposals for contracts for work in connection with section 3 covered assistance. (4) Advertising contracting opportunities by posting notices, which provide general information about the work to be contracted and where to obtain additional information, in the common areas or other prominent areas of the housing
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papers and newsletters, and through the local media, such as community television networks, newspapers of general circulation, and radio advertising. (15) Developing a list of eligible section 3 business concerns. (16) For HAs, participating in the ``Contracting with Resident-Owned Businesses'' program provided under 24 CFR part 963. (17) Establishing or sponsoring programs designed to assist residents of public or Indian housing in the creation and development of resident-owned businesses. (18) Establishing numerical goals (number of awards and dollar amount of contracts) for award of contracts to section 3 business concerns. (19) Supporting businesses which provide economic opportunities to low income persons by linking them to the support services available through the Small Business Administration (SBA), the Department of Commerce and comparable agencies at the State and local levels. (20) Encouraging financial institutions, in carrying out their responsibilities under the Community Reinvestment Act, to provide no or low interest loans for providing working capital and other financial business needs. (21) Actively supporting joint ventures with section 3 business concerns. (22) Actively supporting the development or maintenance of business incubators which assist Section 3 business concerns. III. Examples of Procurement Procedures That Provide for Preference for Section 3 Business Concerns This Section III provides specific procedures that may be followed by recipients and contractors (collectively, referred to as the ``contracting party'') for implementing the section 3 contracting preference for each of the competitive procurement methods authorized in 24 CFR 85.36(d). (1) Small Purchase Procedures. For section 3 covered contracts aggregating no more than $25,000, the methods set forth in
development or developments owned and managed by the HA. (5) For HAs, contacting resident councils, resident management corporations, or other resident organizations, where they exist, and requesting their assistance in identifying category 1 and category 2 business concerns. (6) Providing written notice to all known section 3 business concerns of the contracting opportunities. This notice should be in sufficient time to allow the section 3 business concerns to respond to the bid invitations or request for proposals. (7) Following up with section 3 business concerns that have expressed interest in the contracting opportunities by contacting them to provide additional information on the contracting opportunities. (8) Coordinating pre-bid meetings at which section 3 business concerns could be informed of upcoming contracting and subcontracting opportunities. (9) Carrying out workshops on contracting procedures and specific contract opportunities in a timely manner so that section 3 business concerns can take advantage of upcoming contracting opportunities, with such information being made available in languages other than English where appropriate. (10) Advising section 3 business concerns as to where they may seek assistance to overcome limitations such as inability to obtain bonding, lines of credit, financing, or insurance. (11) Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways to facilitate the participation of section 3 business concerns. (12) Where appropriate, breaking out contract work items into economically feasible units to facilitate participation by section 3 business concerns. (13) Contacting agencies administering HUD Youthbuild programs, and notifying these agencies of the contracting opportunities. (14) Advertising the contracting opportunities through trade association
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this paragraph (1) or the more formal procedures set forth in paragraphs (2) and (3) of this Section III may be utilized. {[[Page 725]]} (i) Solicitation. (A) Quotations may be solicited by telephone, letter or other informal procedure provided that the manner of solicitation provides for participation by a reasonable number of competitive sources. At the time of solicitation, the parties must be informed of: --the section 3 covered contract to be awarded with sufficient specificity; --the time within which quotations must be submitted; and --the information that must be submitted with each quotation. (B) If the method described in paragraph (i)(A) is utilized, there must be an attempt to obtain quotations from a minimum of three qualified sources in order to promote competition. Fewer than three quotations are acceptable when the contracting party has attempted, but has been unable, to obtain a sufficient number of competitive quotations. In unusual circumstances, the contracting party may accept the sole quotation received in response to a solicitation provided the price is reasonable. In all cases, the contracting party shall document the circumstances when it has been unable to obtain at least three quotations. (ii) Award. (A) Where the section 3 covered contract is to be awarded based upon the lowest price, the contract shall be awarded to the qualified section 3 business concern with the lowest responsive quotation, if it is reasonable and no more than 10 percent higher than the quotation of the lowest responsive quotation from any qualified source. If no responsive quotation by a qualified section 3 business concern is within 10 percent of the lowest responsive quotation from any qualified source, the award shall be made to the source with the lowest quotation. (B) Where the section 3 covered contract is to be awarded based on factors other than price, a request for quotations shall be issued by developing the particulars of the solicitation, including a rating system for the assignment of points to evaluate the merits of each quotation. The solicitation shall identify all factors to be considered, including price or cost. The rating system shall provide for a range of 15 to 25 percent of the total number of available rating points to be set aside for the provision of preference for section 3 business concerns. The purchase order shall be awarded to the responsible firm whose quotation is the most advantageous, considering price and all other factors specified in the rating system. (2) Procurement by sealed bids (Invitations for Bids). Preference in the award of section 3 covered contracts that are awarded under a sealed bid (IFB) process may be provided as follows: (i) Bids shall be solicited from all businesses (section 3 business concerns, and non-section 3 business concerns). An award shall be made to the qualified section 3 business concern with the highest priority ranking and with the lowest responsive bid if that bid-(A) is within the maximum total contract price established in the contracting party's budget for the specific project for which bids are being taken, and (B) is not more than ``X'' higher than the total bid price of the lowest responsive bid from any responsible bidder. ``X'' is determined as follows: ----------------------------------------------------------------------x=lesser of: ----------------------------------------------------------------------When the lowest responsive bid is less 10% of that bid or $9,000. than $100,000. When the lowest responsive bid is: At least $100,000, but less than 9% of that bid, or $16,000. $200,000. At least $200,000, but less than 8% of that bid, or $21,000. $300,000. At least $300,000, but less than 7% of that bid, or $24,000. $400,000.
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order of priority ranking as described in 24 CFR 135.36. (iv) With respect to the second component (the acceptability of the section 3 strategy), the RFP shall require the disclosure of the contractor's section 3 strategy to comply with the section 3 training and employment preference, or contracting preference, or both, if applicable. A determination of the contractor's responsibility will include the submission of an acceptable section 3 strategy. The contract award shall be made to the responsible firm (either section 3 or nonsection 3 business concern) whose proposal is determined most advantageous, considering price and all other factors specified in the RFP.
At least $400,000, but less than 6% of that bid, or $25,000. $500,000. At least $500,000, but less than $1 5% of that bid, or $40,000. million. At least $1 million, but less than 4% of that bid, or $60,000. $2 million. At least $2 million, but less than 3% of that bid, or $80,000. $4 million. At least $4 million, but less than 2% of that bid, or $105,000. $7 million. $7 million or more................. 1\1/2\% of the lowest responsive bid, with no dollar limit. ----------------------------------------------------------------------(ii) If no responsive bid by a section 3 business concern meets the requirements of paragraph (2)(i) of this section, the contract shall be awarded to a responsible bidder with the lowest responsive bid. (3) Procurement under the competitive proposals method of procurement (Request for Proposals (RFP)). (i) For contracts and subcontracts awarded under the competitive proposals method of procurement (24 CFR 85.36(d)(3)), a Request for Proposals (RFP) shall identify all evaluation factors (and their relative importance) to be used to rate proposals. (ii) One of the evaluation factors shall address both the preference for section 3 business concerns and the acceptability of the strategy for meeting the greatest extent feasible requirement (section 3 strategy), as disclosed in proposals submitted by all business concerns (section 3 and non-section 3 business concerns). This factor shall provide for {[[Page 726]]} a range of 15 to 25 percent of the total number of available points to be set aside for the evaluation of these two components. (iii) The component of this evaluation factor designed to address the preference for section 3 business concerns must establish a preference for these business concerns in the
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24 CFR 902 Public Housing Assessment System (PHAS)
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 266-295] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 902_PUBLIC HOUSING ASSESSMENT SYSTEM Subpart A_General Provisions 902.1 Purpose and general description. 902.3 Scope. 902.5 Applicability. 902.7 Definitions. 902.9 Frequency of PHAS scoring for small PHAs. Subpart B_PHAS Indicator #1: Physical Condition 902.20 Physical condition assessment. 902.23 Physical condition standards for public housing--decent, safe, and sanitary housing in good repair (DSS/GR). 902.24 Physical inspection of PHA properties. 902.25 Physical condition scoring and thresholds. 902.26 Physical Inspection Report. 902.27 Physical condition portion of total PHAS points. Subpart C_PHAS Indicator #2: Financial Condition 902.30 Financial condition assessment. 902.33 Financial reporting requirements.
902.35 Financial condition scoring and thresholds. 902.37 Financial condition portion of total PHAS points. Subpart D_PHAS Indicator #3: Management Operations 902.40 Management operations assessment. 902.43 Management operations performance standards. 902.45 Management operations scoring and thresholds. {[[Page 267]]} 902.47 Management operations portion of total PHAS points. Subpart E_PHAS Indicator #4: Resident Service and Satisfaction 902.50 Resident service and satisfaction assessment. 902.51 Updating of public housing unit address information. 902.52 Distribution of survey to residents. 902.53 Resident service and satisfaction scoring and thresholds. 902.55 Resident service and satisfaction portion of total PHAS points. Subpart F_PHAS Scoring 902.60 Data collection. 902.63 PHAS scoring. 902.67 Score and designation status. 902.68 Technical review of results of PHAS Indicators 1 or 4. 902.69 PHA right of petition and appeal. Subpart G_PHAS Incentives and Remedies 902.71 Incentives for high performers. 902.73 Referral to an Area HUB/Program Center. 902.75 Referral to a Troubled Agency Recovery Center (TARC). 902.77 Referral to the Departmental Enforcement Center (DEC). 902.79 Substantial default. 902.83 Interventions. 902.85 Resident petitions for remedial action.
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PHA's public housing residents to assess management operations and resident services and satisfaction, respectively. On the basis of this data, REAC will assess and score the results, advise PHAs of their scores and identify low scoring and failing PHAs so that these PHAs will receive the appropriate attention and assistance. (e) Limitation of change of PHA's fiscal year. To allow for a period of consistent assessment of the PHAS indicators, a PHA is not permitted to change its fiscal year for the first three full fiscal years following October 1, 1998, unless such change is approved by HUD.
Authority: 42 U.S.C. 1437d(j), 42 U.S.C. 3535(d). Source: 65 FR 1738, Jan. 11, 2000, unless otherwise noted.
Subpart A_General Provisions
Sec. 902.1 Purpose and general description.
(a) Purpose. The purpose of the Public Housing Assessment System (PHAS) is to improve the delivery of services in public housing and enhance trust in the public housing system among public housing agencies (PHAs), public housing residents, HUD and the general public by providing a management tool for effectively and fairly measuring the performance of a public housing agency in essential housing operations, including rewards for high performers and consequences for poor performers. (b) Responsible office for PHAS assessments. The Real Estate Assessment Center (REAC) is responsible for assessing and scoring the performance of PHAs. (c) PHAS indicators of a PHA's performance. REAC will assess and score a PHA's performance based on the following four indicators: (1) PHAS Indicator 1--the physical condition of a PHA's properties (addressed in subpart B of this part); (2) PHAS Indicator 2--the financial condition of a PHA (addressed in subpart C of this part); (3) PHAS Indicator 3--the management operations of a PHA (addressed in subpart D of this part); and (4) PHAS Indicator 4--the resident service and satisfaction feedback on a PHA's operations (addressed in subpart E of this part). (d) Assessment tools. REAC will make use of uniform and objective protocols for the physical inspection of properties and the financial assessment of the PHA, and will gather relevant data from the PHA and the
Sec. 902.3 Scope.
The PHAS is a strategic measure of a PHA's essential housing operations. The PHAS, however, does not evaluate a PHA's compliance with or response to every Department-wide or program specific requirement or objective. Although not specifically referenced in this part, PHAs remain responsible for complying with such requirements as fair housing and equal opportunity requirements, requirements under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and requirements of programs under which the PHA is receiving assistance. A PHA's adherence {[[Page 268]]} to these requirements will be monitored in accordance with the applicable program regulations and the PHA's Annual Contributions Contract (ACC).
Sec. 902.5 Applicability.
(a) PHAs, RMCs, AMEs. (1) Scoring of RMCs and AMEs. This part applies to PHAs, Resident Management Corporations (RMCs) and Alternate Management Entities (AMEs), as described in this section. As described in this section, this part is also applicable to RMCs that receive direct funding from HUD in accordance with section 20 of the 1937 Act (DF-RMCs). (i) RMCs and DF-RMCs will be assessed and issued their own numeric scores under the PHAS based on the public
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housing developments or portions of public housing developments that they manage and the responsibilities they assume which can be scored under PHAS. References in this part to PHAs include RMCs and this part is applicable to RMCs unless stated otherwise. References in this part to RMCs include DFRMCs and this part is applicable to DFRMCs unless otherwise stated. (ii) AMEs are not issued PHAS scores. The performance of the AME contributes to the PHAS score of the PHA or PHAs for which they assumed management responsibilities. (2) PHA ultimate responsible entity under ACC, except where DF-RMC assumes management operations. (i) Because the PHA and not the RMC/AME is ultimately responsible to HUD under the ACC, the PHAS score of a PHA will be based on all of the developments covered by the ACC, including those with management operations assumed by an RMC or AME (including a court ordered receivership agreement, if applicable). (ii) A PHA's PHAS score will not be based on developments managed by a DFRMC. (b) Implementation of PHAS. The regulations in this part are applicable to PHAs with fiscal years ending on and after June 30, 2000, unless HUD, through Federal Register, notice revises the implementation date to later date. (1) For PHAs that are not issued PHAS scores. Under certain circumstances, PHAs may not be issued PHAS scores. For these PHAs, in lieu of a PHAS score, HUD will issue the following: (i) PHAS Advisory Score. A PHA will be issued a PHAS advisory score for all PHAS indicators--Indicators 1 (Physical), 2 (Financial), 3 (Management Operations), and 4 (Resident Service and Satisfaction). The PHA must comply with the requirements of this part so that HUD may issue the advisory score. Physical inspections required to be conducted by PHAs under the Management Operations Indicator will be conducted using HUD uniform physical inspection
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protocol, unless HUD provides, through Federal Register notice, that PHAs may use HUD's Housing Quality Standards. (ii) Management Assessment Score. A PHA will receive an assessment score on the basis of HUD's assessment of the PHA's management operations in accordance with subpart D of this part. [65 FR 36044, June 6, 2000]
Sec. 902.7 Definitions.
As used in this part: Act means the U.S. Housing Act of 1937 (42 U.S.C. 1437 et seq.) Adjustment for physical condition (development age) and neighborhood environment is a total of three additional points added to PHAS Indicator 1 (Physical Condition). The three additional points, however, shall not result in a total point value exceeding the total points available for PHAS Indicator 1 (established in subpart B of this part). Alternative management entity (AME) is a receiver, private contractor, private manager, or any other entity that is under contract with a PHA, under a Regulatory and Operating Agreement with a PHA, or that is otherwise duly appointed or contracted (for example, by court order or agency action), to manage all or part of a PHA's operations. Assessed fiscal year is the PHA fiscal year that has been assessed under the PHAS. Average number of days nonemergency work orders were active is calculated: (1) By dividing the total of-- {[[Page 269]]} (i) The number of days in the assessed fiscal year it takes to close active nonemergency work orders carried over from the previous fiscal year; (ii) The number of days it takes to complete nonemergency work orders issued and closed during the assessed fiscal year; and (iii) The number of days all active nonemergency work orders are open in the assessed fiscal year, but not completed;
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time nonemergency work orders were active in the PHAS assessment year (the immediate past fiscal year) to the average time nonemergency work orders were active in that fiscal year two years prior to the assessment year. It is calculated by subtracting the average time nonemergency work orders were active in the PHAS assessment year from the average time nonemergency work orders were active in the earlier year. If a PHA elects to certify to the reduction of the average time nonemergency work orders were active during the previous three years, the PHA shall retain justifying documentation to support its certification for HUD post review. Tenant Receivable Outstanding is defined in SEC. 902.35(b)(3). Unit months available is the total number of units managed by a PHA multiplied by 12 (adjusted by new units entering a PHA's public housing stock during the fiscal year) exclusive of unit months vacant due to: demolition; conversion; ongoing modernization; and units approved for non-dwelling purposes. Unit months leased is the actual number of months each unit was rented during the fiscal year based on the PHA's tenant rent rolls or Housing Assistance Payments records. Work order deferred to the Capital Fund Program is any work order that is combined with similar work items and completed within the current PHAS assessment year, or will be completed in the following year when there are less than three months remaining before the end of the PHA fiscal year from the time the work order was generated, under the PHA's Capital Fund Program or other PHA capital improvements program.
(2) By the total number of nonemergency work orders used in the calculation of paragraphs (1)(i), (ii) and (iii) of this definition. Days in this part, unless otherwise specified, refer to calendar days. Deficiency means any PHAS score below 60 percent of the available points in any indicator, sub-indicator or component. (In the context of physical condition and physical inspection, deficiency refers to a physical condition and is defined for purposes of subpart B of this part in SEC. 902.24) Improvement plan is a document developed by a PHA, specifying the actions to be taken, including timetables, that shall be required to correct deficiencies identified under any of the sub-indicators and components within the indicator(s), identified as a result of the PHAS assessment when a Memorandum of Agreement (MOA) is not required. Occupancy loss is the sum of the number one (1) minus the unit months leased divided by unit months available (or Occupancy loss = 1(unit months leased/unit months available). Property is a project/development with a separate identifying project number. Reduced actual vacancy rate within the previous three years is a comparison of the vacancy rate in the PHAS assessed fiscal year (the immediate past fiscal year) to the vacancy rate of that fiscal year two years prior to the assessed fiscal year. It is calculated by subtracting the vacancy rate in the assessed fiscal year from the vacancy rate in the earlier year. If a PHA elects to certify to the reduction of the vacancy rate within the previous three years, the PHA shall retain justifying documentation to support its certification for HUD post review. Reduced actual vacancy rate within the previous three years only applies to PHAs with fiscal years ending September 30, 1999, and December 31, 1999. Reduced average time nonemergency work orders were active during the previous three years is a comparison of the average
Sec. 902.9 Frequency of PHAS scoring for small PHAs.
REAC will assess and score the performance of a PHA with less than 250 {[[Page 270]]}
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public housing units every other PHA fiscal year, unless the small PHA: (a) Elects to have its performance assessed on an annual basis; or (b) Is designated as troubled, in accordance with SEC. 902.67. [68 FR 37671, June 24, 2003]
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Subpart B_PHAS Indicator #1: Physical Condition
Sec. 902.20 Physical condition assessment.
(a) Objective. The objective of the Physical Condition Indicator is to determine whether a PHA is meeting the standard of decent, safe, sanitary, and in good repair (DSS/GR), as this standard is defined in SEC. 902.23 (a standard that provides acceptable basic housing conditions) and the level to which the PHA is maintaining its public housing in accordance with this standard. (b) Physical inspection under PHAS Indicator 1. (1) To achieve the objective of paragraph (a) of this section, REAC will provide for an independent physical inspection of a PHA's property or properties that includes, at minimum, a statistically valid sample of the units in the PHA's public housing portfolio to determine the extent of compliance with the DSS/GR standard. (2) Only occupied units will be inspected as dwelling units (except units approved by HUD for non-dwelling purposes, e.g., daycare or meetings, which are inspected as common areas). Vacant units that are not under lease at the time of the physical inspection will not be inspected, but vacant units are assessed under the Financial Condition Indicator 2 (SEC. 902.35(b)(4)). The categories of vacant units not under lease that are exempted from physical inspection are as follows: (i) Units undergoing vacant unit turnaround--vacant units that are in the routine process of turn over; i.e., the period
between which one resident has vacated a unit and a new lease takes effect; (ii) Units undergoing rehabilitation-vacant units that have substantial rehabilitation needs already identified, and there is an approved implementation plan to address the identified rehabilitation needs and the plan is fully funded; (iii) Off-line units--vacant units that have repair requirements such that the units cannot be occupied in a normal period of time (considered to be between 5 and 7 days) and which are not included under an approved rehabilitation plan; (c) PHA physical inspection requirement. The HUD-conducted physical inspections required by this part do not relieve the PHA of the responsibility to inspect public housing units as provided in section 6(f)(3) of the Act (42 U.S.C. 1437d(f)(3)), and SEC. 902.43(a). (d) Compliance with State and local codes. The physical condition standards in this subpart do not supersede or preempt State and local building and maintenance codes with which the PHA's public housing must comply. PHAs must continue to adhere to these codes. [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36044, June 6, 2000]
Sec. 902.23 Physical condition standards for public housing-decent, safe, and sanitary housing in good repair (DSS/GR).
(a) General. Public housing must be maintained in a manner that meets the physical condition standards set forth in this part in order to be considered decent, safe, sanitary and in good repair (standards that constitute acceptable basic housing conditions). These standards address the major physical areas of public housing: site; building exterior; building systems; dwelling units; and common areas (see paragraph (b) of this section). These standards also identify health and safety considerations (see paragraph (c) of this section). These standards address acceptable basic housing
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(ii) Where applicable, the dwelling unit must have hot and cold running water, including an adequate source of potable water. (iii) If the dwelling unit includes its own sanitary facility, it must be in proper operating condition, usable in privacy, and adequate for personal hygiene and the disposal of human waste. (iv) The dwelling unit must include at least one battery-operated or hard-wired smoke detector, in proper working condition, on each level of the unit. (5) Common areas. The common areas must be structurally sound, secure, and functionally adequate for the purposes intended. The common areas include components such as basement/garage/carport, restrooms, closets, utility, mechanical, community rooms, day care, halls/ corridors, stairs, kitchens, laundry rooms, office, porch, patio, balcony, and trash collection areas, if applicable. The common areas must be free of health and safety hazards, operable, and in good repair. All common area ceilings, doors, floors, HVAC, lighting, outlets/ switches, smoke detectors, stairs, walls, and windows, to the extent applicable, must be free of health and safety hazards, operable, and in good repair. (c) Health and safety concerns. All areas and components of the housing must be free of health and safety hazards. These areas include, but are not limited to, air quality, electrical hazards, elevators, emergency/fire exits, flammable materials, garbage and debris, handrail hazards, infestation, and lead-based paint. For example, the buildings must have fire exits that are not blocked and have hand rails that are undamaged and have no other observable deficiencies. The housing must have no evidence of infestation by rats, mice, or other vermin, or of garbage and debris. The housing must have no evidence of electrical hazards, natural hazards, or fire hazards. The dwelling units and common areas must have proper ventilation and be free of mold, odor (e.g., propane, natural
conditions, not the adornment, decor or other cosmetic appearance of the housing. (b) Major inspectable areas. The five major inspectable areas of public housing are the following: (1) Site. The site includes components, such as fencing and retaining walls, grounds, lighting, mailboxes, signs (such as those identifying the development or areas of the development), parking lots/ driveways, play areas and equipment, refuse disposal, {[[Page 271]]} roads, storm drainage and walkways. The site must be free of health and safety hazards and be in good repair. The site must not be subject to material adverse conditions, such as abandoned vehicles, dangerous walks or steps, poor drainage, septic tank back-ups, sewer hazards, excess accumulations of trash, vermin or rodent infestation or fire hazards. (2) Building exterior. Each building on the site must be structurally sound, secure, habitable, and in good repair. The building's exterior components such as doors, fire escapes, foundations, lighting, roofs, walls, and windows, where applicable, must be free of health and safety hazards, operable, and in good repair. (3) Building systems. The building's systems include components such as domestic water, electrical system, elevators, emergency power, fire protection, HVAC, and sanitary system. Each building's systems must be free of health and safety hazards, functionally adequate, operable, and in good repair. (4) Dwelling units. (i) Each dwelling unit within a building must be structurally sound, habitable, and in good repair. All areas and aspects of the dwelling unit (for example, the unit's bathroom, call-for-aid, ceiling, doors, electrical systems, floors, hot water heater, HVAC (where individual units are provided), kitchen, lighting, outlets/ switches, patio/porch/balcony, smoke detectors, stairs, walls, and windows) must be free of health and safety hazards, functionally adequate, operable, and in good repair.
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gas, methane gas), or other observable deficiencies. The housing must comply with all regulations and requirements related to the ownership of pets, and the evaluation and reduction of lead-based paint hazards and have available proper certifications of such (see 24 CFR part 35).
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Sec. 902.24 Physical inspection of PHA properties.
(a) The inspection, generally. The score for PHAS Indicator 1 is based upon an independent physical inspection of a PHA's properties provided by REAC and using HUD's uniform physical inspection protocols. (1) During the physical inspection of a property, an inspector looks for deficiencies for each inspectable item within the inspectable areas, such as holes (deficiencies) in the walls (item) of a dwelling unit (area). The dwelling {[[Page 272]]} units inspected in a property are a randomly selected, statistically valid sample of the units in the property, excluding vacant units not under lease at the time of the physical inspection, as provided in SEC. 902.20(b)(2). (2) To ensure prompt correction of health and safety deficiencies before leaving the site, the inspector gives the property representative the list of every observed exigent/fire safety health and safety deficiency that calls for immediate attention or remedy. The property representative acknowledges receipt of the deficiency report by signature. (3) After the inspection is completed, the inspector transmits the results to REAC where the results are verified for accuracy and then scored in accordance with the procedures in this subpart. (b) Definitions. The following definitions apply to the physical condition scoring process in this subpart: Criticality means one of five levels that reflect the relative importance of the deficiencies for an inspectable item.
(1) Based on the importance of the deficiency, reflected in its criticality value, points are deducted from the score for an inspectable area. ----------------------------------------------------------------------Criticality Level ----------------------------------------------------------------------Critical.................................................... .. 5 Very important................................................ 4 Important................................................ ..... 3 Contributes............................................. ...... 2 Slight contribution........................................... 1 ----------------------------------------------------------------------(2) The Item Weights and Criticality Levels document lists all deficiencies with their designated levels, which vary from 1 to 5, with 5 as the most critical, and the point values assigned to them. Deficiencies means the specific problems, comparable to problems noted under Housing Quality Standards (HQS), such as a hole in a wall or a damaged refrigerator in the kitchen, that can be recorded for inspectable items. Dictionary of Deficiency Definitions refers to the Dictionary of Deficiency Definitions document which is included as an appendix to the PHAS Notice on the Physical Condition Scoring Process and contains specific definitions of each severity level for deficiencies under this subpart. HUD will publish for comment any significant proposed amendments to this document. After comments have been considered HUD will publish a notice adopting the final Dictionary of Deficiency Definitions document or the amendments to the document. The Dictionary of Deficiency Definitions that is currently in effect can be found at the REAC Internet site at http://www.hud.gov/reac or obtained from REAC's Technical Assistance Center at 888245-4860 (this is a toll free number).
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health and safety deficiencies list that the inspector gives the PHA's property representative. The PHA is expected to promptly address all health and safety deficiencies. Severity means one of three levels, level 1 (minor), level 2 (major), and level 3 (severe), that reflect the extent of the damage or problem associated with each deficiency. The Item Weights and Criticality Levels document shows the severity levels for each deficiency. Based on the severity of each deficiency, the score is reduced. Points deducted are calculated as the product of the item weight and the values for criticality and severity. For specific definitions of each severity level, see REAC's ``Dictionary of Deficiency Definitions''. Sub-area means an inspectable area for one building. For example, if a property has more than one building, each inspectable area for each building in the property is treated as a sub-area. (c) Compliance with civil rights/nondiscrimination requirements. HUD will review certain elements during the physical inspection to determine possible indications of noncompliance with the Fair Housing Act (42 U.S.C. 3601-19) and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). A PHA will not be scored on those elements. Any indication of possible noncompliance will be referred to HUD's Office of Fair Housing and Equal Opportunity. (d) HUD access to PHA properties. PHAs are required by the ACC to provide the Government with full and free access to all facilities contained in the development. PHAs are required to provide HUD or its representative with access to the development, all units and appurtenances thereto in order to permit physical inspections under this part. Access to the units must be provided whether or not the resident is home or has installed additional locks for which the PHA did not obtain keys. In the event that the PHA fails to provide access as required by HUD or its representative, the PHA will be given ``0'' points for the development or developments
Inspectable areas (or area) means any of the five major components of the property that are inspected, which are: site; building exteriors; building systems; dwelling units; and common areas. Inspectable item means the individual parts, such as walls, kitchens, bathrooms, and other things, to be inspected in an inspectable area. The number of inspectable items varies for each area. Weights are assigned to each item as shown in the Item Weights and Criticality Levels document. Item Weights and Criticality Levels Document refers to the Item Weights and Criticality Levels document which is included as an appendix to the PHAS Notice on the Physical Condition Scoring Process and contains a listing of the inspectable items, item weights, observable deficiencies, criticality levels and values, and severity levels and values that apply to this subpart. HUD will publish for comment any significant proposed amendments to this document. After comments have been considered HUD will publish a notice adopting the final Item Weights and Criticality Levels document or the amendments to the document. The Item Weights and Criticality Levels document that is currently in effect can be found at the REAC Internet site at http:// www.hud.gov/reac or obtained from REAC's Technical Assistance Center at 888245-4860 (this is a toll free number). Normalized weights mean weights adjusted to reflect the inspectable items or areas that are present to be inspected. Score means a number on a scale of 0 to 100 that reflects the physical condition of a property, inspectable area, or {[[Page 273]]} sub-area. To record a health or safety deficiency, a specific designation (such as a letter--a, b, or c) is added to the property score that highlights that a health or safety deficiency (or deficiencies) exists. If smoke detectors are noted as inoperable or missing, another designation (such as an asterisk (*)) is added to the property score. Although inoperable or missing smoke detectors do not reduce the score, they are included in the
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Sec. 902.25 Physical condition scoring and thresholds.
(a) Scoring. Under PHAS Indicator 1, REAC will calculate a score for the overall condition of a PHA's public housing portfolio following the procedures described in the PHAS Notice on the Physical Condition Scoring Process (PHAS PASS Notice 3), which will be published in the Federal Register. HUD may revise this notice in the future, but HUD will publish for comment any significant proposed amendments to this notice. After comments have been considered, HUD will publish a notice adopting a final notice or amendment. The PHAS Notice on the Physical Condition Scoring Process that is currently in effect can be found at the REAC Internet site at http://www.hud.gov/reac or obtained from REAC's Technical Assistance Center at 888245-4860 (this is a toll free number). (b) Adjustment for physical condition (property age) and neighborhood environment. In accordance with section 6(j)(1)(I)(2) of the Act (42 U.S.C. 1437d(j)(1)(I)(2)), the overall physical score for a property will be adjusted upward to the extent that negative conditions are caused by situations outside the control of the PHA. These situations are related to the poor physical condition of the property or the overall depressed condition of the immediately surrounding neighborhood. The intent of this adjustment is to avoid penalizing the PHA through appropriate application of the adjustment. (See paragraph (c) of this section which provides for further adjustments of physical condition score under certain circumstances.) (1) Adjustments in three areas. Adjustments to the PHA physical condition score will be made in three factually observed and assessed areas (inspectable areas): {[[Page 274]]} (i) Physical condition of the site; (ii) Physical condition of the common areas on the property; and
(iii) Physical condition of the building exteriors. (2) Definitions. Definitions and application of physical condition and neighborhood environment factors are: (i) Physical condition applies to properties over 10 years old and that have not received substantial rehabilitation in the last 10 years. (ii) Neighborhood environment applies to properties located where the immediate surrounding neighborhood (that is a majority of the population that resides in the census tracts or census block groups on all sides of the development) has at least 51 percent of families with incomes below the poverty rate as documented by the most recent census data. (3) Adjustment for physical condition (property age) and neighborhood environment. HUD will adjust the physical score of a PHA's property subject to both the physical condition (property age) and neighborhood environment conditions. The adjustments will be made to the scores assigned to the applicable inspectable areas so as to reflect the difficulty in managing. In each instance where the actual physical condition of the inspectable area (site, common areas, building exterior) is rated below the maximum score for that area, 1 point will be added, but not to exceed the maximum number of points available to that inspectable area. (i) These extra points will be added to the score of the specific inspectable area, by property, to which these conditions may apply. A PHA is required to certify in the manner prescribed by HUD, the extent to which the conditions apply, and to which inspectable area the extra scoring point should be added. (ii) A PHA that receives the maximum potential weighted points on the inspectable areas may not claim any additional adjustments for physical condition and/or neighborhood environments for the respective inspectable area(s). In no circumstance shall a property's score for the inspectable area, after any adjustment(s) for physical condition and/or neighborhood
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(i) These circumstances are not those that may addressed by the technical review process described in SEC. 902.68. The {[[Page 275]]} circumstances addressed by this paragraph (c)(1) may include inconsistencies between local code requirements and the HUD physical inspection protocol; conditions which are permitted by local variance or license or which are preexisting physical features that do not conform to, or are inconsistent with, HUD's physical condition protocol; or the PHA has been scored for elements (e.g., roads, sidewalks, mail boxes, resident-owned appliances, etc.) that it does not own and is not responsible for maintaining, and the PHA has notified the proper authorities regarding the deficient structure. (ii) An adjustment due to these circumstances may be initiated by a PHA's notification to the applicable HUD HUB/Program Center and such notification shall include appropriate proof of the reasons for the unusual or incorrect result. A PHA may submit the request for this adjustment either prior to or after the physical inspection has been concluded. If the request is made after the conclusion of the physical inspection, the request must be made within 15 days of issuance of the physical condition score. Based on the recommendation of the applicable HUD HUB/Program Center following its review of the PHA's evidence or documentation, HUD may determine that a reinspection and/or re-scoring of the PHA's property is necessary. HUD shall define, by notice, the procedures to be followed to address circumstances described in paragraph (c) of this section. The notice will be applicable to both public housing and multifamily housing properties covered by 24 CFR part 5, subpart G. (2) Adjustments for adverse conditions beyond the PHA's control. Under certain circumstances, HUD may determine that certain deficiencies that adversely and significantly affect the physical condition score of the PHA were caused by circumstances beyond the control of the
environments, exceed the maximum potential weighted points assigned to the respective property's inspectable area(s). (4) Scattered site properties. The Date of Full Availability (DOFA) shall apply to scattered site properties, where the age of units and buildings vary, to determine whether the properties have received substantial rehabilitation within the past 10 years and are eligible for an adjusted score for the Physical Condition Indicator. (5) Maintenance of supporting documentation. PHAs shall maintain supporting documentation to show how they arrived at the determination that the property's score is subject to adjustment under this section. (i) If the basis was neighborhood environments, the PHA shall have on file the appropriate maps showing the census block groups surrounding the development(s) in question with supporting census data showing the level of poverty. Properties that fall into this category but which have already been removed from consideration for other reasons (permitted exemptions and modifications and/or exclusions) shall not be counted in this calculation. (ii) For the Physical Condition Indicator, a PHA would have to maintain documentation showing the age and condition of the properties and the record of capital improvements, evidencing that these particular properties have not received capital funds. (iii) PHAs shall also document that in all cases, properties that were exempted for other reasons were not included in the calculation. (c) Database adjustment. (1) Adjustments for factors not reflected or inappropriately reflected in physical condition score. Under certain circumstances, HUD may determine it is appropriate to review the results of a PHA's physical inspection which are unusual or incorrect due to facts and circumstances affecting the PHA's property which are not reflected in the inspection or which are reflected inappropriately in the inspection.
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PHA. The correction of these conditions, however, remains the responsibility of the PHA. (i) The circumstances addressed by this paragraph (c)(2) may include, but are not limited to, damage caused by third parties (such as a private entity or public entity undertaking work near a public housing development that results in damage to the development) or natural disasters. (The circumstances addressed in paragraph (c)(2) of this section are not those addressed by the technical review process in SEC. 902.68.) (ii) To adjust a physical condition score based on circumstances addressed in paragraph (c)(2) of this section, the PHA must submit a request to the applicable HUD HUB/Program Center requesting a reinspection of the PHA's properties. The request must be submitted within 15 days of the issuance of the physical condition score to the PHA and must be accompanied by a certification that all deficiencies identified in the original report have been corrected. Based on the recommendation of the applicable HUD HUB/Program Center following its review of the PHA's evidence or documentation, HUD may determine that a reinspection and/or re-scoring of the PHA's property is necessary. (3) Adjustments for modernization work in progress. HUD may determine that an occupied dwelling unit or other areas of a PHA development, subject to physical inspection under this subpart, which are undergoing modernization work in progress require an adjustment to the physical condition score. (i) An occupied dwelling unit or other areas of a PHA development undergoing modernization are subject to physical inspection; the unit and other areas of the PHA development are not exempt from physical inspection. All elements of the unit or of the other areas of the PHA development that are subject to inspection and are not undergoing modernization at the time of the inspection (even if modernization is planned) will be subject to HUD's physical inspection protocol without adjustment. For those elements of the unit or
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of the development that are undergoing modernization, deficiencies will be noted in accordance with HUD's physical inspection protocol, but the PHA may request adjustment of the physical condition score as a result of modernization work in progress. (ii) An adjustment due to modernization work in progress may be initiated by a PHA's notification to the applicable HUD HUB/Program Center and the notification shall include supporting documentation of the modernization {[[Page 276]]} work underway at the time of the physical inspection. A PHA may submit the request for this adjustment either prior to or after the physical inspection has been concluded. If the request is made after the conclusion of the physical inspection, the request must be made within 15 days of issuance of the physical condition score. Based on the recommendation of the applicable HUD HUB/Program Center, HUD may determine that a reinspection and/or re-scoring of the PHA's property is necessary. (d) Overall PHA Physical Condition Indicator score. The overall Physical Condition Indicator score for a PHA is the weighted average of the PHA's individual property physical inspection scores, where the weights are the number of units in each property divided by the total number of units in all properties of the PHA. (e) Thresholds. (1) The physical condition score is reduced to a 30 point basis for the PHAS Physical Condition Indicator. (2) In order to receive a passing score under the Physical Condition Indicator, the PHA must achieve a score of at least 18 points, or 60 percent of the available points under this indicator. If the PHA fails to receive a passing score on the Physical Condition Indicator, the PHA shall be categorized as a substandard physical agency. [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36044, June 6, 2000]
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(1) Normalized weights as the ``possible points'' by area; (2) The area scores, taking into account the points deducted for observed deficiencies; (3) The H&S deductions for each of the five inspectable areas; a listing of all observed smoke detector deficiencies; and a projection of the total number of H&S problems that the inspector potentially would see in an inspection of all buildings and all units; and (4) The overall property score.
Sec. 902.26 Physical Inspection Report.
(a) Following the physical inspection and computation of the score under this subpart, each PHA receives a Physical Inspection Report. The Physical Inspection Report allows the PHA to see the magnitude of the points lost by inspectable area, and the impact on the score of the health and safety (H&S) deficiencies. (1) If exigent health and safety items are identified in the report, the PHA will have the opportunity to correct all exigent health and safety deficiencies noted on the report and request a reinspection. (2) The correction of exigent health and safety deficiencies and the request for reinspection must be made within 15 days of the PHA's receipt of the Physical Inspection Report. The request for reinspection must be accompanied by the PHA's identification of the exigent health and safety deficiencies that have been corrected, and the PHA's certification that all such deficiencies identified in the report have been corrected. (3) If HUD determines that a reinspection is appropriate, REAC will arrange for a complete reinspection of the development(s) in question, not just the deficiencies previously identified. The reinspection will constitute the final physical inspection for the development, and REAC will issue a new inspection report (the final inspection report). (4) If any of the previously identified exigent health and safety deficiencies that the PHA certified were corrected are found during the reinspection to be not corrected, the score in the final inspection report will reflect a point deduction of triple the value of the original deduction, up to the maximum possible points for the unit or area, and the PHA must reimburse HUD for the cost of the reinspection. (5) If a request for reinspection is not made within 15 days, the physical inspection report issued to the PHA will be the final physical inspection report. (b) The Physical Inspection Report includes the following items:
Sec. 902.27 Physical condition portion of total PHAS points.
Of the total 100 points available for a PHAS score, a PHA may receive up to 30 points based on the Physical Condition Indicator. {[[Page 277]]}
Subpart C_PHAS Indicator #2: Financial Condition
Sec. 902.30 Financial condition assessment.
(a) Objective. The objective of the Financial Condition Indicator is to measure the financial condition of a PHA for the purpose of evaluating whether it has sufficient financial resources and is capable of managing those financial resources effectively to support the provision of housing that is decent, safe, sanitary and in good repair. (b) Financial reporting standards. A PHA's financial condition will be assessed under this indicator by measuring the PHA's entity-wide performance in each of the components listed in SEC. 902.35, on the basis of the annual financial report provided in accordance with SEC. 902.33.
Sec. 902.33 Financial reporting requirements.
(a) Annual financial report. All PHAs must submit their unaudited and audited financial data to HUD on an annual basis. The financial information must be:
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(1) Prepared in accordance with Generally Accepted Accounting Principles (GAAP) as further defined by HUD in supplementary guidance; and (2) Submitted electronically in the format prescribed by HUD using the Financial Data Schedule (FDS). (b) Annual financial report filing dates. The unaudited financial information to be submitted to HUD in accordance with paragraph (a) of this section, must be submitted to HUD annually, no later than two months after the end of the PHA's fiscal year end, with no penalty applying until the 16th day of the third month after the PHA's fiscal year end in accordance with Uniform Financial Reporting Standards (see 24 CFR part 5, subpart H). An automatic one month extension will be granted for PHAs with fiscal years ending September 30, 1999 through June 30, 2000. (c) Reporting compliance dates. The requirement for compliance with the financial reporting requirements of this section begins with PHAs with fiscal years ending on and after September 30, 1999. Unaudited financial statements will be required two months after the PHA's fiscal year end, and audited financial statements will be required no later than 9 months after the PHA's fiscal year end, in accordance with the Single Audit Act and OMB Circular A-133 (see 24 CFR 84.26). [65 FR 1738, Jan. 11, 2000, as amended at 68 FR 37671, June 24, 2003]
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Sec. 902.35 Financial condition scoring and thresholds.
(a) Scoring. Under PHAS Indicator 2, REAC will calculate a score based on the values of financial condition components, as well as audit and internal control flags. Each financial condition component has several levels of performance, with different point values for each level. A PHA's score for a financial condition component depends upon both the level of the PHA's performance under a component, and the PHA's size, based on the
number of public housing and section 8 units and other units the PHA operates. (1) Under PHAS Indicator 2, REAC will calculate a score following the procedures described in the PHAS Notice on the Financial Condition Scoring Process (PHAS FASS Notice 3), which will be published in the Federal Register. HUD may revise this notice in the future, but HUD will publish for comment any significant proposed amendments to this notice. After comments have been considered, HUD will publish a notice adopting a final notice or amendment. The PHAS Notice on the Financial Condition Scoring Process that is currently in effect can be found at the REAC Internet site at http://www.hud.gov/reac or obtained from REAC's Technical Assistance Center at 888-245-4860 (this is a toll free number). (2) PHAs with fiscal years ending on or before June 30, 2000, will receive an advisory score based on the PHA's entitywide operations. PHAs with fiscal years ending March 31, 2000, and June 30, 2000, will also receive a score under this subpart C. These PHAs will receive a PHAS financial condition score on the basis of their public housing operating subsidies program. PHAs with fiscal years ending after June 30, 2000, will receive PHAS financial condition scores on the basis of their entity-wide operations. {[[Page 278]]} (3) High liquidity or reserves. (i) Under the scoring process for the Financial Condition Indicator, no points will be deducted under the Current Ratio or Monthly Expenditure Fund Balance components for a PHA that has too high liquidity or reserves if the PHA has achieved at least 90 percent of the points available under the Physical Condition Indicator, and is not required to prepare a follow-up survey plan under the Resident Service and Satisfaction Indicator. (ii) A PHA that has too high liquidity or reserves but does not meet the qualifications described in paragraph (a)(3)(i) of this section may appeal point deductions under the Current Ratio or Monthly Expenditure Fund Balance
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year's operations have affected the PHA's viability. (c) Thresholds. In order to receive a passing score under the Financial Condition Indicator, the PHA must achieve a score of at least 18 points, or 60 percent of the available points under this indicator. If the PHA fails to receive a passing score on the Financial Condition Indicator, the PHA shall be categorized as a substandard financial agency. [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36044, June 6, 2000]
components based on mitigating circumstances if the PHA's physical condition score is at least 60 percent of the total available points under the Physical Condition Indicator. (A) The appeal may be made without regard to change in designation. (B) To adjust a financial condition score based on mitigating circumstances, the PHA must submit a request to the applicable HUD HUB/ Program Center within 15 days of the issuance of the financial condition score to the PHA and must be accompanied by a description of the mitigating circumstances. Based on the recommendation of the applicable HUD HUB/Program Center following its review of the PHA's evidence or documentation, HUD may determine that a point adjustment for the financial condition score is acceptable. (b) Components of PHAS Indicator 2. The components of PHAS Indicator 2 are: (1) Current Ratio is current assets divided by current liabilities. (2) Number of Months Expendable Fund Balance is expendable fund balance (Expendable Fund Balance) divided by monthly operating expenses. The Expendable Fund Balance is the portion of the fund balance representing expendable available financial resources, that is, the unreserved and undesignated fund balance. (3) Tenant Receivable Outstanding is the average number of days tenant receivables are outstanding and it is calculated by dividing tenant accounts receivable by Daily Tenant Revenue (rental revenue/365). (4) Occupancy Loss is one minus unit months leased divided by unit months available. (5) Expense Management/Utility Consumption is the expense per unit for key expenses, including utility consumption, and other expenses such as maintenance and security. (6) Net Income or Loss divided by the Expendable Fund Balance measures how the
Sec. 902.37 Financial condition portion of total PHAS points.
Of the total 100 points available for a PHAS score, a PHA may receive up to 30 points based on the Financial Condition Indicator.
Subpart D_PHAS Indicator #3: Management Operations
Sec. 902.40 Management operations assessment.
(a) Objective. The objective of the Management Operations Indicator is to measure certain key management operations and responsibilities of a PHA for the purpose of assessing the PHA's management operations capabilities. (b) Management assessment. PHAS Indicator 3 pertaining to Management Operations incorporates the majority of the statutory indicators of section 6(j) of the Act, as provided in SEC. 902.43. (The remaining statutory indicators are addressed under the other PHAS Indicators.)
Sec. 902.43 Management operations performance standards.
(a) Management operations subindicators. The following subindicators listed {[[Page 279]]}
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in this section will be used to assess a PHA's management operations. The components and grades for each subindicator are the same as those provided in Appendix 1 to the PHAS Notice on the Management Operations Scoring Process, except as may be otherwise noted in this subpart. (1) Management sub-indicator #1-Vacant Unit Turnaround Time. This subindicator measures the PHA's efforts to reduce unit turnaround time and assesses the adequacy of the PHA's system to track unit down time, make ready time and lease up time. (2) Management sub-indicator #2-Capital Fund. This management subindicator examines the amount and percentage of funds provided to the PHA from the Capital Fund under section 9(d) of the Act, which remain unexpended by the PHA after three years, the timeliness of fund obligation, the adequacy of contract administration, the quality of the physical work, and the adequacy of budget controls. For funding under the HOPE VI Program, only components 3, 4, and 5 of this sub-indicator are applicable. This management subindicator is automatically excluded if the PHA does not have section 9(d) capital funding. (3) Management sub-indicator #3-Work Orders. This management subindicator examines the time it takes to complete or abate emergency work orders, the average number of days nonemergency work orders were active, and any progress a PHA has made during the preceding three years to reduce the period of time nonemergency maintenance work orders were active. Implicit in this management sub-indicator is the adequacy of the PHA's work order system in terms of how a PHA accounts for and controls its work orders, and its timeliness in preparing/issuing work orders. (4) Management sub-indicator #4-PHA Annual Inspection of Units and Systems. This management sub-indicator examines the percentage of units and
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systems that a PHA inspects on an annual basis in order to determine short-term maintenance needs and long-term Capital Fund needs. This management sub-indicator requires a PHA's inspection to utilize the HUD uniform physical condition standards set forth in subpart B of this part. All occupied units are required to be inspected. (5) Management sub-indicator #5-Security. (i) This management subindicator evaluates the PHA's performance in tracking crime related problems in their developments; reporting incidence of crime to local law enforcement agencies; the adoption and implementation, consistent with section 6(j)(1)(I) (42 U.S.C. 1437d(j)(1)(I)), of applicant screening and resident eviction policies and procedures, and other anticrime strategies; coordination with local government officials and residents in the development on implementation of such strategies; and as applicable, PHA performance under any HUD drug prevention/crime reduction grants. (ii) Paragraph (a) of this section provides that the components and grades for each sub-indicator are the same as those for the corresponding indicator provided in Appendix 1 to the PHAS Notice on the Management Operations Scoring Process, except as may be otherwise noted. For Component 1, Tracking and Reporting Crime Related Problems, the following will be used to describe a Grade of A: The PHA Board, by resolution, has adopted policies and the PHA has implemented procedures and can document that it: (A) Tracks crime and crime-related problems in at least 90 percent of its developments; (B) Has a cooperative system for tracking and reporting incidents of crime to local police authorities to improve law enforcement and crime prevention; and (C) Coordinates with local government officials and its residents on the implementation of anticrime strategies. (6) Management sub-indicator #6-Economic Self-Sufficiency. The economic
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score following the procedures described in the PHAS Notice on the Management Operations Scoring Process (PHAS MASS Notice 3), which will be published in the Federal Register. HUD may revise this notice in the future, but HUD will publish for comment any significant proposed amendments to this notice. After comments have been considered, HUD will publish a notice adopting a final notice or amendment. The PHAS Notice on the Management Operations Scoring Process that is currently in effect can be found at the REAC Internet site at http://www.hud.gov/reac or obtained from REAC's Technical Assistance Center at 888-245-4860 (this is a toll free number). (b) Thresholds. (1) In order to receive a passing score under the Management Operations Indicator, the PHA must achieve a score of at least 18 points or 60 percent of the available points under this PHAS Indicator 3. If the PHA fails to receive a passing score on the Management Operations Indicator, the PHA shall be categorized as a substandard management agency. (2) A PHA that receives less than 60 percent of the maximum calculation for the Capital Fund subindicator under Management Operations Indicator, shall be subject to the sanctions provided in section 6(j)(4) of the Act (see SEC. 902.67(c)(2)(ii).) [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36045, June 6, 2000]
self-sufficiency sub-indicator measures the PHA's efforts to coordinate, promote or provide effective programs and activities to promote the economic self-sufficiency of residents. For this subindicator, PHAs will be assessed for all the programs that the PHA has HUD funding to implement. Also, PHAs will receive credit for implementation of programs through partnerships with {[[Page 280]]} non-PHA providers, even if the programs are not funded by HUD or the PHA. (b) Reporting on performance under the Management Operations Indicator. (1) A PHA is required to submit electronically a certification of its performance under each of the management operations sub-indicators in accordance with SEC. 902.60(d). (2) If circumstances preclude a PHA from reporting electronically, HUD will consider granting short-term approval to allow a PHA to submit its management operations certification manually. A PHA that seeks approval to submit its certification manually must ensure that REAC receives a request for manual submission in writing two months prior to the submission due date of its Management Operations certification. The written request must include the reasons why the PHA cannot submit its certification electronically. REAC will respond to such a request and will manually forward its determination in writing to the PHA. [65 FR 36044, June 6, 2000]
Sec. 902.45 Management operations scoring and thresholds.
(a) Scoring. The Management Operations Indicator score provides an assessment of each PHA's management effectiveness. Under PHAS Indicator 3, REAC will calculate a score of the overall management operations of a PHA that reflects weights based on the relative importance of the individual management sub-indicators. Under PHAS Indicator 3, REAC will calculate a
Sec. 902.47 Management operations portion of total PHAS points.
Of the total 100 points available for a PHAS score, a PHA may receive up to 30 points based on the Management Operations Indicator.
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Subpart E_PHAS Indicator #4: Resident Service and Satisfaction
Sec. 902.50 Resident service and satisfaction assessment.
(a) Objective. The objective of the Resident Service and Satisfaction Indicator is to measure the level of resident satisfaction with living conditions at the PHA. (b) Method of assessment, generally. The assessment required under PHAS Indicator 4 will be performed through the use of a resident service and satisfaction survey. The survey process will be managed by the PHA in accordance with a methodology prescribed by HUD. The PHA will be responsible for completing implementation plan activities and developing a follow-up plan, if applicable, to address issues resulting from the survey, subject to independent audit. (c) PHA certification of completion of resident survey process. (1) At the completion of the resident survey process as described in this subpart, a PHA will be audited as part of the Independent {[[Page 281]]} Audit to ensure that the resident survey process has been managed as directed by HUD. PHAs are required to submit and certify their implementation plans electronically via the internet prior to the fiscal year end in accordance with SEC. 902.60(d). Follow-up plans, if applicable, must be made available for review and inspection at the principal office of the PHA during normal business hours as a supporting document to the PHA's Annual Plan in accordance with SEC. 903.23(d) of this title. The PHA must certify electronically that it will develop a followup plan, if applicable. (2) If circumstances preclude the PHA from reporting electronically, HUD will consider granting short-term approval to allow a PHA to submit its resident service and satisfaction certification manually. A
PHA that seeks approval to submit the certification manually must ensure that REAC receives the PHA's written request for manual submission two months before the submission due date of its resident service and satisfaction certification. The written request must include the reasons why the PHA cannot submit the certification electronically. REAC will respond to the PHA's request and will manually forward its determination in writing to the PHA.
Sec. 902.51 Updating of public housing unit address information.
(a) Electronic updating. The survey process for the Resident Service and Satisfaction Indicator is dependent upon electronic updating, submission and certification of resident address and unit information by PHAs. (b) Unit address update and verification. The survey process for PHAS Indicator 4 begins with ensuring accurate information about the public housing unit addresses. (1) PHAs will be required to electronically update unit address information initially obtained by REAC from the recently revised form HUD-50058, Family Report. REAC will supply a list of current units (listed by development) to PHAs via the internet. PHAs will be asked to make additions, deletions and corrections to their unit address list. (2) After updating the list, PHAs must verify that the list of unit addresses under their jurisdiction is complete. Any incorrect or obsolete address information will have a detrimental impact on the survey results. A statistically valid number of residents cannot be selected to participate in the survey if the unit addresses are incorrect or obsolete. If a PHA does not verify the address information within two months of submission of the list of current units to the PHA by REAC, and the address information is not valid, REAC will not be able to conduct the survey at that PHA. Under those conditions, the PHA will
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not receive any points for the PHAS Resident Service and Satisfaction Indicator. (c) Electronic updating of the address list. (1) The preferred method for updating a unit address list is electronic updating via the internet. (2) If circumstances preclude a PHA from updating and submitting its unit address list electronically, HUD will consider granting short-term approval to allow a PHA to submit the updated unit address list information manually. A PHA that seeks approval to update its unit address list manually must ensure that REAC receives the PHA's written request for manual submission one month before the submission due date. The written request must include the reasons why the PHA cannot update the list electronically. REAC will respond to the PHA's request upon receipt of the request.
Sec. 902.53 Resident service and satisfaction scoring and thresholds.
(a) Scoring. (1) Under the PHAS Indicator 4, REAC will calculate a score based upon two components that receive points and a third component that is a threshold requirement. (i) One component will be the point score of the survey results. The survey content will focus on resident evaluation of the overall living conditions, to include basic constructs such as: (A) Maintenance and repair (i.e., work order response); (B) Communications (i.e., perceived effectiveness); (C) Safety (i.e., perception of personal security); (D) Services; and (E) Neighborhood appearance. (ii) The second component will be a point score based on the level of implementation and follow-up or corrective actions based on the results of the survey. (iii) The final component, which is not scored for points, but which is a threshold requirement, is verification that the survey process was managed in a manner consistent with guidance provided by HUD. (2) Under PHAS Indicator 4, REAC will calculate a score following the procedures described in the PHAS Notice on the Resident Service and Satisfaction Survey Scoring Process (PHAS RASS Notice 3), which will be published in the Federal Register. HUD may revise this notice in the future, but HUD will publish for comment any significant proposed amendments to this notice. After comments have been considered, HUD will publish a notice adopting a final notice or amendment. The PHAS Notice on the Resident Service and Satisfaction Survey Process that is currently in effect can be found at the REAC Internet site at http:// www.hud.gov/reac or obtained from REAC's Technical Assistance Center at 888245-4860 (this is a toll free number).
Sec. 902.52 Distribution of survey to residents.
(a) Sampling. A statistically valid number of units will be chosen to receive the Resident Service and Satisfaction Survey. These units will be randomly selected based on the total number of occupied and vacant units of the PHA. The Resident Service and Satisfaction assessment takes into account the different properties managed by a PHA by organizing the unit sampling based on the unit representation of each development in relation to the size of the entire PHA. (b) Survey distribution by third party organization. The Resident Service and Satisfaction survey will be distributed to the randomly selected sample of {[[Page 282]]} units of each PHA by a third party organization designated by HUD. The third party organization will also be responsible for: (1) Collecting, scanning and aggregating results of the survey; (2) Transmitting the survey results to HUD for analysis and scoring; and (3) Keeping individual responses to the survey confidential.
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(b) Thresholds. A PHA will not receive any points under PHAS Indicator 4 if the survey process is not managed as directed by HUD, the survey results are determined to be altered, or the public housing unit addresses are not updated as referenced in SEC. 902.51 of this document. A PHA will receive a passing score on the Resident Service and Satisfaction Indicator if the PHA receives at least 6 points, or 60 percent of the available points under this PHAS Indicator 4.
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Sec. 902.55 Resident service and satisfaction portion of total PHAS points.
Of the total 100 points available for a PHAS score, a PHA may receive up to 10 points based on the Resident Service and Satisfaction Indicator.
Subpart F_PHAS Scoring
Sec. 902.60 Data collection.
(a) Fiscal Year reporting period-limitation on changes after PHAS effectiveness. An assessed fiscal year for purposes of the PHAS corresponds to a PHA's fiscal year. To allow for a period of consistent assessments to refine and make necessary adjustments to the PHAS, a PHA is not permitted to change its fiscal year for the first three full fiscal years following October 1, 1998, unless such change is approved by HUD (see SEC. 902.1(e)). (b) Physical condition information. Information necessary to conduct the physical condition assessment under subpart B of this part will be obtained from HUD inspectors during the fiscal year being scored through electronic transmission of the data. (c) Financial condition information. Year-end financial information to conduct the assessment under subpart C, Financial Condition, of this part will be submitted by a PHA through electronic transmission of the data to HUD not later than two months after the end of the PHA's fiscal year. An audited
report of the year-end financial information is due not later than 9 months after the end of the PHA's fiscal year. {[[Page 283]]} (d) Management operations and resident service and satisfaction information. A PHA shall provide certification to HUD as to data required under subpart D, Management Operations, of this part and subpart E, Resident Service and Satisfaction, of this part not later than two months after the end of the PHA's fiscal year that is being assessed and scored, with no penalty applying, however, until the 16th day of the third month after the PHA fiscal year end. An automatic one month extension will be granted for PHAs with fiscal years ending September 30, 1999 through June 30, 2000. (1) The Management Operations certification shall be approved by PHA Board resolution, and signed and attested to by the Executive Director. (2) PHAs shall maintain documentation for three years verifying all certified indicators for HUD on-site review. (e) Failure to submit data by due date. (1) If a PHA without a finding of good cause by HUD does not submit its certifications or yearend financial information, required by this part, or submits its certifications or yearend financial information more than 15 days past the due date, appropriate sanctions may be imposed, including a reduction of 1 point in the total PHAS score for each 15-day period past the due date. (2) If any certification or year-end financial information, with the exception of the PHA's audited financial statement, is not received within three months after the due date, the PHA will receive a presumptive rating of failure for each PHAS Indicator for which the certification or year-end financial information is not received. The PHA's audited financial statement must be received no later than 9 months after the PHA's fiscal year-end, in accordance with OMB Circular A-133 (see SEC. 902.33(c)). If the audited financial statement is not received by that date, the PHA will receive a presumptive rating of failure for the PHAS Financial Indicator. If the PHA receives a presumptive
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approved by its Executive Director or Chief Executive Officer or responsible party. (2) For a DF-RMC, the DF-RMC must submit directly to HUD its certified statement concerning the management functions that it has undertaken. The DFRMC's certification shall be approved by its Executive Director or {[[Page 284]]} Chief Executive Officer or responsible party. [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36045, June 6, 2000; 68 FR 37671, June 24, 2003]
rating failure for any PHAS Indicator due to failure to submit a certification or year-end financial information by the due date, including any extension of the due date, as provided in this paragraph (except for the audited financial statement for which the due date is established by OMB Circular A133), the PHA shall be designated as troubled or identified as troubled with respect to the program for assistance from the Capital Fund under section 9(d) of the Act. (f) Verification of information submitted. (1) A PHA's certifications, yearend financial information and any supporting documentation are subject to verification by HUD at any time, including review by an independent auditor as authorized by section 6(j)(6) of the Act (42 U.S.C. 1437(d)(j)(6)). Appropriate sanctions for intentional false certification will be imposed, including civil penalties, suspension or debarment of the signatories, the loss of high performer designation, a lower score under individual PHAS indicators and a lower overall PHAS score. (2) A PHA that cannot provide justifying documentation to REAC, or to the PHA's independent auditor for the assessment under any indicator(s), subindicator(s) and/or component(s) shall receive a score of 0 for the relevant indicator(s), sub-indicator(s) and/or component(s), and its overall PHAS score shall be lowered. (g) Management operations assumed by an RMC (including DF-RMC). For those developments of a PHA where management operations have been assumed by an RMC, the PHA's certification shall identify the development and the management functions assumed by the RMC. (1) For an RMC, that is not a DF-RMC, the PHA shall obtain a certified questionnaire from the RMC as to the management functions undertaken by the RMC. Following verification of the RMC's certification, the PHA shall submit the RMC's certified questionnaire along with its own. The RMC's certification shall be
Sec. 902.63 PHAS scoring.
(a) Computing the PHAS score. Each of the four PHAS indicators in this part will be scored individually, and then will be used to determine an overall score for the PHA. Components within each of the four PHAS indicators will be scored individually, and the scores for the components will be used to determine a single score for each of the PHAS indicators. (b) Adjustments to the PHAS score. (1) Adjustments to the score may be made after a PHA's audit report for the year being assessed is transmitted to HUD. If significant differences (as defined in GAAP guidance materials provided to PHAs) are noted between unaudited and audited results, a PHA's PHAS score will be adjusted (e.g., reduction in points) in accordance with the audited results. (2) A PHA's PHAS score under individual indicators, sub-indicators or components, or its overall PHAS score, may be changed by HUD in accordance with data included in the independent audit report, or obtained through such sources as HUD onsite review, investigations by HUD's Office of Fair Housing and Equal Opportunity, or reinspection by REAC, as applicable. (c) Issuance of score by HUD. An overall PHAS score will be issued by REAC for each PHA after the later of one month after the submission due date for financial data and certifications, or one month after submission by the PHA of its financial data and certifications. The overall PHAS score
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becomes the PHA's final PHAS score after any adjustments requested by the PHA and determined necessary under the processes provided in SEC. Sec. 902.25(c), 902.35(a)(3) and/or 902.68; any adjustments requested by the PHA and determined necessary under the appeal process provided in SEC. 902.69; and/or any adjustments determined necessary as a result of the independent public accountant (IPA) audit, as provided in paragraph (b) of this section. (d) Review of audit. For a PHA whose audit has been found deficient as a result of a quality control review of the IPA workpapers, a quality control review that is conducted by REAC as part of REAC's ongoing quality assurance process, REAC may, at its discretion, select the audit firm that will perform the audit of the PHA and may serve as the audit committee for the audit in question. This review is important to determine the accuracy of the scoring under the Financial Condition Indicator. (e) Posting and publication of PHAS scores. Each PHA (or RMC as the case may be) shall post a notice of its final PHAS score and status in appropriate conspicuous and accessible locations in its offices within two weeks of receipt of its final score and status. In addition, HUD will publish every PHA's score and status in the Federal Register and on HUD's internet site.
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Sec. 902.67 Score and designation status.
A PHA will receive a status designation corresponding to its final PHAS score as follows: (a) High performer. (1) A PHA that achieves a score of at least 60 percent of the points available under each of the four PHAS Indicators (addressed in subparts B through E of this part) and achieves an overall PHAS score of 90 percent or greater of the total available points under PHAS shall be designated a high performer. (2) A PHA shall not be designated a high performer if it scores below the threshold established for any indicator.
(3) High performers will be afforded incentives that include relief from reporting and other requirements, as described in SEC. 902.71. (b) Standard performer. (1) A PHA that is not a high performer shall be designated a standard performer if: (i) The PHA achieves a total PHAS score of not less than 60 percent of the total available points under PHAS; and (ii) The PHA does not achieve less than 60 percent of the total points available under one of the following indicators, PHAS Indicators 1, 2, or 3 (2) All standard performers must correct reported deficiencies. (3) A PHA that achieves a total PHAS score of less than 70 percent, but {[[Page 285]]} not less that 60 percent, is required by the HUB/Program Center to submit an Improvement Plan to correct identified deficiencies. (4) A PHA that achieves a total PHAS score of less than 70 percent but not less than 60 percent is at risk of being designated troubled. (c) Troubled performer. A PHA that is designated as troubled may be: (1) Overall troubled. A PHA that achieves an overall PHAS score of less than 60 percent or achieves less than 60 percent of the total points available under more than one of the following indicators, PHAS Indicators 1, 2, or 3, shall be designated as troubled (overall), and referred to the TARC as described in SEC. 902.75. (2) Troubled in one area. (i) A PHA that achieves less than 60 percent of the total points available under only one of the following indicators, PHAS Indicators 1, 2, or 3, shall be considered a substandard physical, substandard financial, or substandard management performer, and referred to the TARC as described in SEC. 902.75. (ii) In accordance with section 6(j)(2) of the Act, a PHA that receives less than 60 percent of the maximum calculation for the
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rescinded, the PHA shall be designated troubled. (3) The denial or rescission of a designation of high performer or standard performer does not affect the PHA's numerical PHAS score. (4) A PHA that disagrees with the basis for denial or rescission of the designation may make a written request for reinstatement of the designation to the Assistant Secretary for Public and Indian Housing which request shall include reasons for the reinstatement. [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36045, June 6, 2000]
Capital Fund sub-indicator under PHAS Indicator 3 (Management Operations, subpart D of this part; see SEC. 902.43(a)) will be subject to the sanctions, provided in section 6(j)(4), as appropriate. (d) Withholding designation. (1) In exceptional circumstances, even though a PHA has satisfied all of the PHAS Indicators for high performer or standard performer designation, HUD may conduct any review as it may determine necessary, and may deny or rescind incentives or high performer designation or standard performer designation, in the case of a PHA that: (i) Is operating under a special agreement with HUD; (ii) Is involved in litigation that bears directly upon the physical, financial or management performance of a PHA; (iii) Is operating under a court order; (iv) Demonstrates substantial evidence of fraud or misconduct, including evidence that the PHA's certifications, submitted in accordance with this part, are not supported by the facts, as evidenced by such sources as a HUD review, routine reports, an Office of Inspector General investigation/audit, an independent auditor's audit or an investigation by any appropriate legal authority; or (v) Demonstrates substantial noncompliance in one or more areas of a PHA's required compliance with applicable laws and regulations, including areas not assessed under the PHAS. Areas of substantial noncompliance include, but are not limited to, noncompliance with civil rights, nondiscrimination and fair housing laws and regulations, or the Annual Contributions Contract. Substantial noncompliance casts doubt on the capacity of a PHA to preserve and protect its public housing developments and operate them consistent with Federal laws and regulations. (2) If high performer designation is denied or rescinded, the PHA shall be designated either a standard performer or troubled performer depending on the nature and seriousness of the matter or matters constituting the basis for HUD's action. If standard performer designation is denied or
Sec. 902.68 Technical review of results of PHAS Indicators #1 or #4.
(a) Request for technical reviews. This section describes the process for requesting and granting technical reviews of physical inspection results and resident survey results. (1) For both reviews, the burden of proof is on the PHA to show that an error occurred. (2) For both reviews, a request for technical review must be submitted in writing to the Director of the Real Estate Assessment Center and must be {[[Page 286]]} received by REAC no later than 15 days following the issuance of the applicable results to the PHA (either the physical inspection results or the resident survey results). The request must be accompanied by the PHA's reasonable evidence that an error occurred. (b) Technical review of physical inspection results. (1) For each property inspected, REAC will provide the results of the physical inspection and a score for that property to the PHA. If the PHA believes that an objectively verifiable and material error (or errors) occurred in the inspection of an individual property, the PHA may request a technical review of the inspection results for that property.
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(2) For a technical review of physical inspection results, the PHA's request must be accompanied by the PHA's evidence that an objectively verifiable and material error has occurred. The documentation submitted by the PHA may be photographic evidence, written material from an objective source, such as a local fire marshal or building code official, or other similar evidence. The evidence must be more than a disagreement with the inspector's observations, or the inspector's finding regarding the severity of the deficiency. (3) A technical review of a property's physical inspection will not be conducted based on conditions that were corrected subsequent to the inspection, nor will REAC consider a request for a technical review that is based on a challenge to the inspector's findings as to the severity of the deficiency (i.e., minor, major or severe). (4) Upon receipt of a PHA's request for technical review of a property's inspection results, REAC will review the PHA's file and any objectively verifiable evidence produced by the PHA. If REAC's review determines that an objectively verifiable and material error (or errors) has been documented, then REAC may take one or a combination of the following actions: (i) Undertake a new inspection; (ii) Correct the physical inspection report; (iii) Issue a corrected physical condition score; (iv) Issue a corrected PHAS score. (5) In determining whether a new inspection of the property is warranted and a new PHAS score must be issued, REAC will review the PHA's file and evidence submitted to determine whether the evidence supports that there may have been a significant contractor error in the inspection which results in a significant change from the property's original physical condition score and the PHAS designation assigned to the PHA (i.e., high performer, standard performer, or troubled performer). If REAC determines that a new inspection is warranted, and the new inspection results in a significant change from the original
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physical condition score, and the PHA's PHAS score and PHAS designation, REAC shall issue a new PHAS score to the PHA. (6) Material errors are the only grounds for technical review of physical inspection results. Material errors are those that exhibit specific characteristics and meet specific thresholds. The three types of material errors are: (i) Building data error. A building data error occurs if the inspection includes the wrong building or a building that was not owned by the PHA, including common or site areas that were not a part of the property. Incorrect building data that does not affect the score, such as the address, building name, year built, etc., would not be considered material, but is of great interest to HUD and will be corrected upon notice to REAC. (ii) Unit count error. A unit count error occurs if the total number of public housing units considered in scoring is incorrect. Since scoring uses total public housing units, REAC will examine instances where the participant can provide evidence that the total units used is incorrect. (iii) Non-existent deficiency error. A non-existent deficiency error occurs if the inspection cites a deficiency that does not exist. (7) A PHA's subsequent correction of deficiencies identified as a result of a property's physical inspection cannot serve as the basis for an appeal of the PHA's physical condition score. (c) Technical review of resident survey results. REAC will consider conducting a technical review of a PHA's resident {[[Page 287]]} survey results in cases where the contracted third party organization can be shown by the PHA to be in error. (1) The burden of proof rests with the PHA to provide objectively verifiable evidence that a technical error occurred. Examples include, but are not limited to, incorrect material being mailed to residents; or the PHA's units addresses were incorrect due to the third party organization's error, such as unit numbers being omitted from the
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Assessment Center that must be received by REAC no later than 30 days following the issuance of the overall PHAS score to the PHA. To petition removal of troubled designation, a PHA also must submit its request in writing to the Director of the Real Estate Assessment Center. The written request must be received by REAC no later than 30 days after HUD's decision to refuse to remove the PHA's troubled designation. (2) An appeal of troubled designation or petition for removal of troubled designation must include the PHA's supporting documentation and reasons for the appeal. An appeal of a PHAS score must be accompanied by the PHA's reasonable evidence that an objectively verifiable and material error occurred. An appeal submitted to REAC without appropriate documentation will not be considered and will be returned to the PHA. (d) Consideration of appeal. (1) Consideration of appeal of PHAS score. Upon receipt of an appeal of a PHAS score from a PHA, REAC will review the PHA's file and the evidence submitted by the PHA to support that an error occurred. If REAC determines that an objectively verifiable and material error has been documented by the PHA, REAC will convene a Board of Review, in accordance with the procedures of paragraphs (d) and (e) of this section, to evaluate the appeal and its merits for purposes of determining whether a reassessment of the PHA is warranted. For appeal of PHAS scores, the Board of Review may determine that REAC should undertake a new inspection of the property, and/or a reexamination of the financial information, management information, or resident information (the components of the PHAS score), depending upon which PHAS Indicator the PHA believes was scored erroneously and the type of evidence submitted by the PHA to support its position that an error occurred. {[[Page 288]]} (2) Consideration of appeal of troubled designation or refusal to remove troubled designation. Upon receipt of an appeal of a troubled designation from a PHA, REAC will convene a Board of Review (the Board)
addresses. A PHA that does not update its unit address list as described, above, will not be eligible for a technical review based on incorrect addresses. (2) Upon receipt of a PHA's request for technical review of resident survey results, REAC will review the PHA's file and evidence submitted by the PHA. If REAC's review determines that an error has been documented, REAC may take one or a combination of the following actions: (i) Undertake a new survey; (ii) Correct the resident survey results report; (iii) Issue a corrected resident services and satisfaction score; (iv) Issue a corrected PHAS score.
Sec. 902.69 PHA right of petition and appeal.
(a) Appeal of troubled designation and petition for removal troubled designation. A PHA may: (1) Appeal its troubled designation (including designation as troubled with respect to its performance under the Capital Fund subindicator as provided in SEC. 902.67(c)(2)); and (2) Petition for removal of troubled designation. (b) Appeal of PHAS score. If a PHA believes that an objectively verifiable and material error (or errors) exists in any of the scores for its PHAS Indicators, which, if corrected, will result in a significant change in the PHA's PHAS score and its designation (i.e., as troubled, standard, or high performer), the PHA may appeal its PHAS score in accordance with the procedures of paragraphs (c), (d) and (e) of this section. A significant change in a PHAS score is a change that would cause the PHA's PHAS score to increase, resulting in a higher PHAS designation for the PHA (i.e., from troubled performer to standard performer, or from standard performer to high performer). (c) Appeal and petition procedures. (1) To appeal troubled designation or a PHAS score, a PHA must submit a request in writing to the Director of the Real Estate
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to evaluate the appeal and its merits for the purpose of determining whether a reassessment of the PHA is warranted. Board membership will be comprised of a representative from REAC, from the Office of Public and Indian Housing, and from such other office or representative as the Secretary may designate (excluding, however, representation from the Troubled Agency Recovery Center). For purposes of reassessment, REAC will schedule a reinspection and/or acquire audit services, as determined by the Board, and a new score will be issued, if appropriate. Decisions by the Board will be reported to the PHA by the Assistant Secretary for Public and Indian Housing. (e) Final appeal decisions. HUD will make final decisions of appeals, made under this section, within 30 days of receipt of an appeal, and may extend this period for an additional 30 days if further inquiry is necessary. Failure by a PHA to submit supporting documentation with its request for appeal, or within any additional period granted by HUD is grounds for denial of an appeal. Final appeal decisions will be reported to the PHA by the Assistant Secretary for Public and Indian Housing. [65 FR 36045, June 6, 2000]
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Subpart G_PHAS Incentives and Remedies
Sec. 902.71 Incentives for high performers.
(a) Incentives for high performer PHAs. A PHA that is designated a high performer will be eligible for the following incentives, and such other incentives that HUD may determine appropriate and permissible under program statutes or regulations: (1) Relief from specific HUD requirements. (i) A PHA that is designated high performer will be relieved of specific HUD requirements (for example, fewer reviews and less monitoring), effective upon notification of high performer designation.
(ii) The development or developments of a PHA that receives a physical condition score of 90 percent or greater under PHAS Indicator 1 shall be subject to a physical inspection every other year rather than annually. (All developments of the high performer PHA are subject to inspection every other year, not only those inspected for which the physical condition score of 90 percent or greater was achieved.) (2) Public recognition. High performer PHAs and RMCs that receive a score of at least 60 percent of the points available under each of the four PHAS Indicators and achieve an overall PHAS score of 90, will receive a Certificate of Commendation from HUD as well as special public recognition, as provided by the HUB/Program Center. (3) Bonus points in funding competitions. A high performer PHA will be eligible for bonus points in HUD's funding competitions, where such bonus points are not restricted by statute or regulation governing the funding program. Where permissible by statute or regulation, eligibility for high performers to receive bonus points in HUD's funding competitions, will be stated in HUD's notices of funding availability or other funding documents. (b) Compliance with applicable Federal laws and regulations. Relief from any standard procedural requirement that may be provided under this section does not mean that a PHA is relieved from compliance with the provisions of Federal law and regulations or other handbook requirements. For example, although a high performer or standard performer may be relieved of requirements for prior HUD approval for certain types of contracts for services, the PHA must still comply with all other Federal and State requirements that remain in effect, such as those for competitive bidding or competitive negotiation (see 24 CFR 85.36). (c) Audits and reviews not relieved by designation. A PHA designated as a high performer or standard performer remains subject to:
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information stated in paragraph (d) of this section. (c) Correction of deficiencies. (1) Time period for correction. After a PHA's (or DFRMC's) receipt of its PHAS score and designation as a standard performer or, in the case of an RMC, notification of its score from a PHA, a PHA or RMC shall correct any deficiency indicated in its assessment within 90 days, or within such period as provided in the HUD approved Improvement Plan if an Improvement Plan is required. (2) Notification and report to HUB/Program Center. A PHA shall notify the HUB/Program Center of its action to correct a deficiency. A PHA shall also forward to the HUB/Program Center an RMC's report of its action to correct a deficiency. A DF-RMC shall forward directly to the HUB/Program Center its report of its action to correct a deficiency. (d) Improvement Plan. An Improvement Plan shall: (1) Identify baseline data, which should be raw data but may be the PHA's score for each individual PHAS indicator, subindicator and/or component that was identified as a deficiency; (2) Identify any other performance and/or compliance deficiencies that were identified as a result of an on-site review of the PHA's operations; (3) Describe the procedures that will be followed to correct each deficiency; (4) Provide a timetable for the correction of each deficiency; and (5) Provide for or facilitate technical assistance to the PHA. (e) Determination of acceptability of Improvement Plan (1) The HUB/ Program Center will approve or deny a PHA's Improvement Plan (or RMC's Improvement Plan submitted to the HUB/Program Center through the RMC's PHA, or the DF-RMC's Improvement Plan submitted directly to the HUB/ Program Center), and notify the PHA of its decision. A PHA that submits an RMC's Improvement Plan must notify the RMC in writing, immediately upon receipt
(1) Regular independent auditor (IA) audits. (2) Office of Inspector General (OIG) audits or investigations will continue {[[Page 289]]} to be conducted as circumstances may warrant.
Sec. 902.73 Referral to an Area HUB/Program Center.
(a) Standard performers will be referred to the HUB/Program Center for appropriate action. (1) A standard performer that receives a total score of less than 70 percent but not less than 60 percent shall be required to submit an Improvement Plan to eliminate deficiencies in the PHA's performance. (2) A standard performer that receives a score of not less than 70 percent may be required, at the discretion of the appropriate area HUB/ Program Center, to submit an Improvement Plan to address specific deficiencies. (b) Submission of an Improvement Plan. (1) Within 30 days after the final PHAS score is issued, a standard performer with a score of less than 70 percent is required to submit an Improvement Plan to the HUB/ Program Center in accordance with paragraphs (d) and (e) of this section. (2) An RMC, unless a DF-RMC, that is required to submit an Improvement Plan must develop the plan in consultation with its PHA and submit the plan to the HUB/Program Center through its PHA. A DF-RMC that is required to submit an Improvement Plan, also must develop its plan in consultation with its PHA, but must submit its plan directly to the HUB/ Program Center. (3) On a risk management basis, the HUB/Program Center may require a standard performer with a score of not less than 70 percent to submit within 30 days after receipt of its final PHAS score an Improvement Plan, which includes the
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of the HUB/Program Center notification, of the HUB/Program Center approval or denial of the RMC's Improvement Plan. (2) An Improvement Plan that is not approved will be returned to the PHA with recommendations from the HUB/Program Center for revising the Improvement Plan to obtain approval. (f) Submission of revised Improvement Plan. A revised Improvement Plan shall be resubmitted by the PHA within 30 calendar days of its receipt of the HUB/Program Center recommendations. (g) Failure to submit acceptable Improvement Plan or correct deficiencies. (1) If a PHA fails to submit an acceptable {[[Page 290]]} Improvement Plan, or to correct deficiencies within the time specified in an Improvement Plan or such extensions as may be granted by HUD, the HUB/Program Center will notify the PHA of its noncompliance. (2) The PHA (or DF-RMC or the RMC through the PHA) will provide the HUB/Program Center its reasons for lack of progress in submitting or carrying out the Improvement Plan within 30 calendar days of its receipt of the noncompliance notification. HUD will advise the PHA as to the acceptability of its reasons for lack of progress. (3) If HUD finds the PHA's reasons for lack of progress unacceptable, HUD will notify the PHA that it will be referred to the area Troubled Agency Recovery Center (TARC) for remedial actions or such actions as the TARC may determine appropriate in accordance with the provisions of the ACC, this part and other HUD regulations, including the remedies available for substantial default. (4) In the case of a PHA's failure to correct deficiencies within the time specified in an Improvement Plan or such extensions as may be granted by HUD, if the TARC determines that it is appropriate to refer the PHA to the Departmental Enforcement Center (DEC), it will only do so after the PHA has had one year since the issuance of the PHAS score (or, in the case of an RMC, that is not a DF-RMC, notification of its score from a PHA) to correct its deficiencies.
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Sec. 902.75 Referral to a Troubled Agency Recovery Center (TARC).
(a) General. Upon a PHA's designation of troubled (including troubled in one area), in accordance with the requirements of section 6(j)(2)(B) of the Act and in accordance with this part (or part 901, of this chapter if applicable), REAC shall refer each troubled PHA to the PHA's area TARC for remedial action. Remedial action by the TARC may include referral to the HUB/Program Center for oversight and monitoring. The actions to be taken by HUD and the PHA will include actions statutorily required, and such other actions as may be determined appropriate by HUD. (b) Memorandum of Agreement (MOA). Within 30 days of notification of a PHA's designation as a troubled performer (including substandard categorization), HUD will initiate activities to develop a MOA. The final MOA is a binding contractual agreement between HUD and a PHA. The scope of the MOA may vary depending upon the extent of the problems present in the PHA, but shall include: (1) Baseline data, which should be raw data but may be the PHA's score in each of the PHAS indicators, sub-indicators or components identified as a deficiency; (2) Performance targets for such periods specified by HUD (e.g., annual, semi-annual, quarterly, monthly), which may be the attainment of a higher score within an indicator, sub-indicator or component that is a problem, or the description of a goal to be achieved; (3) Strategies to be used by the PHA in achieving the performance targets within the time period of the MOA; (4) Technical assistance to the PHA provided or facilitated by HUD, for example, the training of PHA employees in specific management areas or assistance in
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beginning on the date on which the PHA receives initial notice of troubled designation (including notice of substandard status) or October 21, 1998, whichever is later, the PHA shall improve its performance, as measured by the PHAS Indicators, by at least 50 percent of the difference between the most recent performance measurement and the measurement necessary to remove the PHA's designation as troubled or substandard status. (2) Expiration of two-year recovery period. Upon the expiration of the two-year period beginning on the later of the date on which the PHA receives initial notice of troubled designation (including notice of substandard status) or October 21, 1998, the PHA shall improve its performance and achieve an overall PHAS score of at least 60 percent, and achieve a score of at least 60 percent of the total points available under each of PHAS Indicators 1, 2 and 3. (e) Parties to the MOA. An MOA shall be executed by: (1) The PHA Board Chairperson (supported by a Board resolution), or a receiver (pursuant to a court ordered receivership agreement, if applicable) or other AME acting in lieu of the PHA Board; (2) The PHA Executive Director, or a designated receiver (pursuant to a court ordered receivership agreement, if applicable) or other AMEdesignated Chief Executive Officer; (3) The Director of the area TARC; and (4) The appointing authorities of the Board of Commissioners, unless exempted by the TARC. (f) Involvement of resident leadership in the MOA. HUD encourages the inclusion of the resident leadership in the execution of the MOA. (g) Failure to execute MOA or make substantial improvement under MOA. (1) If a troubled PHA fails or refuses to execute a MOA within the period provided in paragraph (b) of this section, or a troubled PHA operating under an executed MOA does not show a substantial improvement, as
the resolution of outstanding HUD monitoring findings; (5) The PHA's commitment to take all actions within its control to achieve the targets; (6) Incentives for meeting such targets, such as the removal of troubled designation or troubled with respect to the program for assistance from the Capital Fund under section 9(d) and Departmental recognition for the most improved PHAs; (7) The consequences of failing to meet the targets include but are not limited to, such sanctions as the imposition of budget and management controls by HUD, declaration of substantial default and subsequent actions, including referral to the DEC for judicial appointment of a receiver, limited denial of participation, suspension, debarment, or other actions deemed appropriate by the DEC; and (8) A description of the involvement of local public and private entities, including PHA resident leaders, in carrying out the agreement and rectifying the PHA's problems. A PHA shall have {[[Page 291]]} primary responsibility for obtaining active local public and private entity participation, including the involvement of public housing resident leaders, in assisting PHA improvement efforts. Local public and private entity participation should be premised upon the participant's knowledge of the PHA, ability to contribute technical expertise with regard to the PHA's specific problem areas and authority to make preliminary/tentative commitments of support, financial or otherwise. (c) PHA review of MOA. The PHA will have 10 days to review the MOA. During this 10-day period, the PHA shall resolve any claimed discrepancies in the MOA with HUD, and discuss any recommended changes and target dates for improvement to be incorporated in the final MOA. Unless the time period is extended by HUD, the MOA is to be executed 15 days following issuance of the preliminary MOA. (d) Maximum recovery period. (1) Expiration of one-year recovery period. Upon the expiration of the one-year period
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provided in paragraph (d) of this section, toward a passing PHAS score following the issuance of the failing PHAS score by REAC, the TARC shall refer the PHA to the DEC in accordance with SEC. 902.77, and the DEC shall take the actions required by SEC. 902.77(a)(2). (2) For purposes of this paragraph (g), substantial improvement is defined as the improvement required by paragraphs (d)(1) and (d)(2) of this section. The maximum period of time for remaining in troubled status before being referred to the DEC is two years. Therefore, the PHA must make substantial improvement in each year of this two year period. (3) The following example illustrates the provisions of paragraph (g)(1) of this section: Example: A PHA receives a score of 50 percent; 60 percent is a passing score. The PHA is referred to the TARC. Within one year after the score is issued to the PHA, the PHA must achieve a 55 (50% of the points necessary to achieve a passing score of 60 points) to continue recovery efforts in the TARC. In the second year, the PHA must achieve a minimum score of 60 points (a passing score). If in the first year, the PHA fails to achieve the five-point increase,the PHA will be referred to the DEC. If in the first year, the PHA achieves the five-point increase but fails to achieve a passing score in the second year, the PHA will be referred to the DEC. The maximum period of time for {[[Page 292]]} remaining in troubled status before being referred to the DEC is two years. (h) Audit review. For a PHA designated as troubled, REAC will perform an audit review and may, at its discretion, select the audit firm that will perform the audit of the PHA and REAC may, at its discretion, serve as the audit committee for the audit in question. (i) Continuation of services to residents. To the extent feasible, while a PHA is under a referral to a TARC, all services to residents will continue uninterrupted.
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Sec. 902.77 Referral to the Departmental Enforcement Center (DEC).
(a) Referral of Troubled PHA to the DEC for failing to execute or meet MOA requirements. (1) Failure of a troubled PHA to execute or meet the requirements of a MOA in accordance with SEC. 902.75 constitutes a substantial default under SEC. 902.79 and may result in referral of the PHA to the DEC. The TARC will recommend to the Assistant Secretary for Public and Indian Housing that a troubled performer PHA be declared in substantial default. In accordance with SEC. Sec. 902.79, the Assistant Secretary shall notify the PHA of the default and allow the PHA an opportunity to cure the default. A PHA shall be referred to the DEC if the PHA fails to cure the default within the a period not to exceed 30 days unless the Assistant Secretary for Public and Indian Housing determines that a longer period is appropriate. (2) Actions of the DEC. The DEC shall initiate: (i) The judicial appointment of a receiver, or (ii) An administrative receivership at HUD's option but only: (A) With respect to PHAs with fewer than 1250 units, or (B) While HUD's petition for judicial receivership is pending; and (iii) Upon the recommendation of the Assistant Secretary for Public and Indian Housing, the interventions provided in SEC. 902.83, and may initiate such other sanctions available to HUD, including, limited denial of participation, suspension, debarment, and referral to the appropriate Federal government agencies or offices for the imposition of civil or criminal sanctions. (b) Referral of PHAs in Substantial Default to the DEC. A PHA that is not designated as troubled but that has been found to be in substantial default under the provisions of SEC. 902.79 shall also be referred to the DEC. The Assistant Secretary for Public and Indian Housing makes the
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conditions shall constitute substantial default. (1) HUD may determine that events have occurred or that conditions exist that constitute a substantial default if a PHA is determined to be in violation of Federal statutes, including but not limited to, the Act, or in violation of regulations implementing such statutory requirements, whether or not such violations would constitute a substantial breach or default under provisions of the relevant ACC. (2) HUD may determine that a PHA's failure to satisfy the terms of a memorandum of agreement entered into in accordance with SEC. 902.75, or to make reasonable progress to execute or meet requirements included in a memorandum of agreement, are events or conditions that constitute a substantial default. (3) HUD shall determine that a PHA that has been designated as troubled and does not show substantial improvement, as defined in SEC. 902.75(g)(2), is in substantial default. (4) HUD may declare a substantial breach or default under the ACC, in accordance with its terms and conditions. (5) HUD may determine that the events or conditions constituting a substantial default are limited to a portion of a PHA's public housing operations, designated either by program, by operational area, or by development(s). (b) Notification of substantial default and response. If information from an annual assessment or audit, or any other credible source (including but not limited to the Office of Fair Housing Enforcement, the Office of the Inspector General, a judicial referral or a referral from a mayor or other official) indicates that there may exist events or conditions constituting a substantial breach or default, HUD shall advise a PHA of such information. HUD is authorized to protect the confidentiality of the source(s) of such information in appropriate cases. Before taking further action, except in cases of apparent fraud or criminality, and/or in cases where emergency conditions exist posing an imminent threat to the life, health,
determination that a PHA is in substantial default. In accordance with SEC. 902.79, the Assistant Secretary shall notify the PHA of the default and allow the PHA an opportunity to cure the default. If the PHA fails to cure the default within the specified period time, the PHA shall be referred to the DEC. The DEC shall initiate the judicial appointment of a receiver or the interventions provided in SEC. 902.83 as recommended by the Assistant Secretary for Public and Indian Housing and may initiate such other sanctions available to HUD, including, limited denial of participation, suspension, debarment, and referral to the appropriate Federal government agencies or offices for the imposition of civil or criminal sanctions. (c) Receivership/Possession of PHA by HUD. (1) If a judicial receiver is appointed, the receiver, in addition to the powers provided by the court, shall have available the powers provided by section 6(j)(3)(C) of the Act (42 U.S.C. 1437d(j)(3)(C)). (2) If HUD assumes responsibility for all or part of the PHA, the Secretary of HUD shall have available the powers provided by section 6(j)(3)(D) of the Act (42 U.S.C. 1437d(j)(3)(D)). (3) If an administrative receiver is appointed, the Secretary may delegate to the administrative receiver any of the powers provided to the Secretary as described in paragraph (e)(2) of this section, in accordance with section 6(j)(3)(D). (4) The appointments of receivers, the actions of receivers, and HUD's responsibilities toward the receivers are governed by the provisions of section 6(j)(3). (d) To the extent feasible, while a PHA is under a referral to the DEC, all services to residents will continue uninterrupted. [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36046, June 6, 2000] {[[Page 293]]}
Sec. 902.79 Substantial default.
(a) Events or conditions that constitute substantial default. The following events or
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or safety of residents, HUD shall afford the PHA a timely opportunity to initiate corrective action, including the remedies and procedures available to PHAs designated as troubled PHAs, or to demonstrate that the information is incorrect. (1) Form of notification. Upon a determination or finding that events have occurred or that conditions exist that constitute a substantial default, the Assistant Secretary shall provide written notification of such determination or finding to the affected PHA. Written notification shall be transmitted to the Executive Director, the Chairperson of the Board, and the appointing authority(ies) of the Board, and shall include, but is not limited to: (i) Identification of the specific covenants, conditions, and/or agreements under which the PHA is determined to be in noncompliance; (ii) Identification of the specific events, occurrences, or conditions that constitute the determined noncompliance; (iii) Citation of the communications and opportunities to effect remedies afforded pursuant to paragraph (a) of this section; (iv) Notification to the PHA of a specific time period, to be not less than 10 calendar days, except in cases of apparent fraud or other criminal behavior, and/or under emergency conditions as described in paragraph (b)(4) of this section, nor more than 30 calendar days, during which the PHA shall be required to demonstrate that the determination or finding is not substantively accurate; and (v) Notification to the PHA that, absent a satisfactory response in accordance with paragraph (b) of this section, HUD will refer the PHA to the Enforcement Center, using any or all of the interventions specified in SEC. 902.83, and determined to be appropriate to remedy the noncompliance, citing SEC. 902.83, and any additional authority for such action. (2) Receipt of notification. Upon receipt of the notification described in paragraph (b)(1) of this section, the PHA must demonstrate, within the time period
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permitted in the notification, factual error in HUD's description of events, occurrences, or conditions, {[[Page 294]]} or show that the events, occurrences, or conditions do not constitute noncompliance with the statute, regulation, or covenants or conditions to which the PHA is cited in the notification. (3) Waiver of notification. A PHA may waive, in writing, receipt of explicit notice from HUD as to a finding of substantial default, and voluntarily consent to a determination of substantial default. The PHA must concur on the existence of substantial default conditions which can be remedied by technical assistance, and the PHA shall provide HUD with written assurances that all deficiencies will be addressed by the PHA. HUD will then immediately proceed with interventions as provided in SEC. 902.83. (4) Emergency situations. In any situation determined to be an emergency, or in any case where the events or conditions precipitating the intervention are determined to be the result of criminal or fraudulent activity, the Secretary or the Secretary's designee is authorized to intercede to protect the residents' and HUD's interests by causing the proposed interventions to be implemented without further appeals or delays. [65 FR 1738, Jan. 11, 2000, as amended at 65 FR 36046, June 6, 2000]
Sec. 902.83 Interventions.
(a) Interventions under this part (including an assumption of operating responsibilities) may be limited to one or more of a PHA's specific operational areas (e.g., maintenance, modernization, occupancy, or financial management) or to a single development or a group of developments. Under this limited intervention procedure, HUD could select, or participate in the selection of, an AME to assume management responsibility for a specific development, a group of developments in a geographical area, or a specific operational area, while permitting
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cured or the public housing agency is capable again of discharging its duties. (e) HUD may take the actions described in this part sequentially or simultaneously in any combination.
the PHA to retain responsibility for all programs, operational areas, and developments not so designated. (b) Upon determining that a substantial default exists under this part, HUD may initiate any interventions deemed necessary to maintain decent, safe, and sanitary dwellings for residents. Such intervention may include: (1) Providing technical assistance for existing PHA management staff; (2) Selecting or participating in the selection of an AME to provide technical assistance or other services up to and including contract management of all or any part of the public housing developments administered by a PHA; (3) Assuming possession and operational responsibility for all or any part of the public housing administered by a PHA; (4) Entering into agreements, arrangements, and/or contracts for or on behalf of a PHA, or acting as the PHA, and expending or authorizing the expenditure of PHA funds, irrespective of the source of such funds, to remedy the events or conditions constituting the substantial default; (5) The provision of intervention and assistance necessary to remedy emergency conditions; (6) After the solicitation of competitive proposals, select an administrative receiver to manage and operate all or part of the PHA's housing; and (7) Petition for the appointment of a receiver to any District Court of the United States or any court of the State in which real property of the PHA is located. (c) The receiver is to conduct the affairs of the PHA in a manner consistent with statutory, regulatory, and contractual obligations of the PHA and in accordance with such additional terms and conditions that the court may provide and with section 6(j)(3)(C) of the Act. (d) The appointment of a receiver pursuant to this section may be terminated upon the petition of any party, when the court determines that all defaults have been
Sec. 902.85 Resident petitions for remedial action.
The total number of residents that petition HUD to take remedial action pursuant to sections 6(j)(3)(A) (i) through (iv) of the Act must equal at {[[Page 295]]} least 20 percent of the residents, or the petition must be from an organization or organizations of residents whose membership must equal at least 20 percent of the PHA's residents.
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24 CFR 905 Public Housing Capital Fund Program
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 354-360] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 905_THE PUBLIC HOUSING CAPITAL FUND PROGRAM--Table of Contents 905.10 Capital Fund formula (CFF). 905.120 Penalties for slow obligation or expenditure of CFP assistance. Authority: 42 U.S.C. 1437g and 3535(d). Source: 65 FR 14426, March 16, 2000, unless otherwise noted.
Sec. 905.10 Capital Fund formula (CFF).
(a) General. This section describes the formula for allocation of capital funds to PHAs. The formula is referred to as the Capital Fund formula (CFF). (b) Emergency reserve and use of amounts. (1) In each Federal fiscal year after Federal Fiscal Year (FFY) 1999, from amounts approved in the appropriation act for funding under this part, HUD: (i) Shall reserve an amount not to exceed that authorized by 42 U.S.C. 1437g(k) for-(A) Use for assistance in connection with emergencies and other disasters, and
(B) Housing needs resulting from any settlement of litigation; and (ii) May reserve such other amounts for other purposes authorized by 42 U.S.C. 1437g(k). (2) Amounts set aside under paragraph (b) of this section may be used for assistance for any eligible use under the Capital Fund, Operating Fund, or tenant-based assistance in accordance with section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f). (3) The use of any amounts as provided under paragraph (b) of this section relating to emergencies (other than disasters and housing needs resulting from settlement of litigation) shall be announced subsequently through Federal Register notice. (c) Formula allocation based on relative needs. After determining the amounts to be reserved under paragraph (b) of this section, HUD shall allocate the amount remaining in accordance with the CFF. The CFF measures the existing modernization needs and accrual needs of PHAs. (d) Allocation for existing modernization needs under the CFF. HUD shall allocate one-half of the available Capital Fund amount based on the relative existing modernization needs of PHAs, determined in accordance with this paragraph (d) of this section. (1) For PHAs greater than or equal to 250 or more units in FFY 1999, except the New York City and Chicago Housing Authorities, estimates of the existing modernization need will be based on the following: (i) Objective measurable data concerning the following PHA, community and development characteristics applied to each development: (A) The average number of bedrooms in the units in a development. (Equation coefficient: 4604.7); (B) The total number of units in a development as of FFY 1999. (Equation coefficient: 10.17); (C) The proportion of units, as of FFY 1998, in a development in buildings completed in 1978 or earlier. In the case of acquired developments, HUD will use the
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(ii) Acquired developments. Developments acquired by a PHA with a DOFA date of October 1, 1991, or thereafter, will be considered by HUD to have a zero existing modernization need. (3) For PHAs with fewer than 250 units in FFY 1999, estimates of the existing modernization need will be based on the following: (i) Objective measurable data concerning the following PHA, community and development characteristics applied to each development: (A) The average number of bedrooms in the units in a development. (Equation coefficient: 1427.1); (B) The total number of units in a development as of FFY 1999. (Equation coefficient: 24.3); (C) The proportion of units, as of FFY 1998, in a development in buildings completed in 1978 or earlier. In the case of acquired developments, HUD will use the DOFA date unless the PHA provides HUD with the actual date of construction, in which case HUD will use the actual date of construction (or, for scattered sites, the average dates of construction of all the buildings), subject to a 50-year cap. (Equation co-efficient: -1389.7); (D) The cost index of rehabilitating property in the area, as of FFY 1999. (Equation co-efficient: -20163); (E) The extent to which the units of a development were in a nonmetropolitan area as defined by the Census Bureau during FFY 1996. (Equation co-efficient: 6157.7); (F) The PHA is located in the southern census region, as defined by the Census Bureau. (Equation co-efficient: 4379.2); (G) The PHA is located in the western census region, as defined by the Census Bureau. (Equation co-efficient: 3747.7); (H) The PHA is located in the midwest census region as defined by the Census Bureau. (Equation co-efficient: -2073.5) (ii) An equation constant of 24762. (A) Newly constructed units. Units with a DOFA date of October 1, 1991, or
Date of Full Availability (DOFA) date unless the PHA provides HUD with the actual date of construction. When provided with the actual date of construction, HUD will use this date (or, for scattered sites, the average dates of construction of all the buildings), subject to a 50-year cap. (Equation co-efficient: 4965.4); (D) The cost index of rehabilitating property in the area as of FFY 1999. (Equation co-efficient: -10608); (E) The extent to which the units of a development were in a nonmetropolitan area as defined by the Census Bureau during FFY 1996. (Equation co-efficient: 2703.9); (F) The PHA is located in the southern census region, as defined by the Census Bureau. (Equation co-efficient: -269.4); {[[Page 355]]} (G) The PHA is located in the western census region, as defined by the Census Bureau. (Equation co-efficient: -1709.5); (H) The PHA is located in the midwest census region as defined by the Census Bureau. (Equation co-efficient: 246.2) (ii) An equation constant of 13851. (A) Newly constructed units. Units with a DOFA date of October 1, 1991, or thereafter, will be considered to have a zero existing modernization need. (B) Acquired developments. Developments acquired by a PHA with a DOFA date of October 1, 1991, or thereafter, will be considered by HUD to have a zero existing modernization need. (2) For New York City and Chicago Housing Authorities, based on a large sample of direct inspections. For purposes of this formula, prior to the cost calibration in paragraph (d)(4) of this section, the number used for the existing modernization need of family developments is $16,680 in New York, and $24,286 in Chicago, and the number for elderly developments is $14,622 in New York, and $16,912 in Chicago. (i) Newly constructed units. Units with a DOFA date of October 1, 1991, or thereafter, will be considered to have a zero existing modernization need.
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thereafter, will be considered to have a zero existing modernization need. (B) Acquired developments. Developments acquired by a PHA with a DOFA date of October 1, 1991, or thereafter, will be considered by HUD to have a zero existing modernization need. (4) Calibration of existing modernization need for cost index of rehabilitating property in the area. The estimated existing modernization need, as determined under paragraphs (d)(1), (d)(2) or (d)(3) of this section, shall be adjusted by the values of the cost index of rehabilitating property in the area. (e) Allocation for accrual needs under the CFF. HUD shall allocate the other half of the remaining Capital Fund amount based on the relative accrual needs of PHAs, determined in accordance with paragraph (e) of this section. (1) For PHAs greater than or equal to 250 or more units, except the New York City and Chicago Housing Authorities, estimates of the accrual need will be based on the following: (i) Objective measurable data concerning the following PHA, community and development characteristics applied to each development: {[[Page 356]]} (A) The average number of bedrooms in the units in a development. (Equation coefficient: 324.0); (B) The extent to which the buildings in a development average fewer than 5 units. (Equation co-efficient: 93.3); (C) The age of a development as of FFY 1998, as determined by the DOFA date. In the case of acquired developments, HUD will use the DOFA date unless the PHA provides HUD with the actual date of construction, in which case HUD will use the actual date of construction (or, for scattered sites, the average dates of construction of all the buildings), subject to a 50-year cap. (Equation co-efficient: -7.8); (D) Whether the development is a family development. (Equation coefficient: 184.5);
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(E) The cost index of rehabilitating property in the area, as of FFY 1999. (Equation co-efficient: -252.8); (F) The extent to which the units of a development were in a nonmetropolitan area as defined by the Census Bureau during FFY 1996. (Equation co-efficient: -121.3); (G) PHA size of 6600 or more units in FFY 1999. (Equation coefficient: -150.7); (H) The PHA is located in the southern census region, as defined by the Census Bureau. (Equation co-efficient: 28.4); (I) The PHA is located in the western census region, as defined by the Census Bureau. (Equation co-efficient: -116.9); (J) The PHA is located in the midwest census region as defined by the Census Bureau. (Equation co-efficient: 60.7) (ii) An equation constant of 1371.9, (2) For New York City and Chicago Housing Authorities, based on a large sample of direct inspections. For purposes of this formula, prior to the cost calibration in paragraph (e)(4) of this section the number used for the accrual need of family developments is $1,395 in New York, and $1,251 in Chicago, and the number for elderly developments is $734 in New York, and $864 in Chicago. (3) For PHAs with fewer than 250 units, estimates of the accrual need will be based on the following: (i) Objective measurable data concerning the following PHA, community and development characteristics applied to each development: (A) The average number of bedrooms in the units in a development. (Equation coefficient: 325.5); (B) The extent to which the buildings in a development average fewer than 5 units. (Equation co-efficient: 179.8); (C) The age of a development as of FFY 1998, as determined by the DOFA date. In the case of acquired developments, HUD will use the DOFA date unless the PHA provides HUD with the actual date of construction. When provided with the actual date of construction, HUD will use this date
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date''). Any such increase in units shall result in an adjustment upwards in the number of units under the CFF. New units reaching DOFA after the reporting date will be counted for CFF purposes as of the following Federal Fiscal Year. (2) Replacement units. Replacement units newly constructed as of and after October 1, 1998 that replace units in a development funded in FFY 1999 by the Comprehensive Grant formula system or the Comprehensive Improvement Assistance Program (CIAP) formula system will be given a new ACC number as a separate development and will be treated as a newly constructed development. (3) Conversion of units. The total estimated need (total units times need per unit) of the development is unchanged by conversion of unit sizes within buildings. (4) Reduction of units. For developments losing units as a result of demolition and disposition, the number of units on which capital funding is based will be the number of units reported as eligible for capital funding as of the reporting date. Units are eligible for funding until they are removed due to demolition and disposition in accordance with a schedule approved by HUD. (g) Computation of formula shares under the CFF. (1) Total estimated existing modernization need. The total estimated existing modernization need of a PHA under the CFF is the result of multiplying for each development the PHA's total number of formula units by its estimated existing modernization need per unit, as determined by paragraph (d) of this section, and calculating the sum of these estimated development needs. (2) Total accrual need. The total accrual need of a PHA under the CFF is the result of multiplying for each development the PHA's total number of formula units by its estimated accrual need per unit, as determined by paragraph (e) of this section, and calculating the sum of these estimated accrual needs. (3) PHA's formula share of existing modernization need. A PHA's formula share
(or, for scattered sites, the average dates of construction of all the buildings), subject to a 50-year cap. (Equation co-efficient: -9.0); (D) Whether the development is a family development. (Equation coefficient: 59.3); (E) The cost index of rehabilitating property in the area, as of FFY 1999. (Equation co-efficient: -1570.5); (F) The extent to which the units of a development were in a nonmetropolitan area as defined by the Census Bureau during FFY 1996. (Equation co-efficient: -122.9); (G) The PHA is located in the southern census region, as defined by the Census Bureau. (Equation co-efficient: -564.0); (H) The PHA is located in the western census region, as defined by the Census Bureau. (Equation co-efficient: -29.6); (I) The PHA is located in the midwest census region as defined by the Census Bureau. (Equation co-efficient: -418.3) (ii) An equation constant of 3193.6. (4) Calibration of accrual need for the cost index of rehabilitating property in the area. The estimated accrual need, as determined under either paragraph (e)(2) or (e)(3) of this section, shall be adjusted by the values of the cost index of rehabilitation. (f) Calculation of number of units. (1) General. For purposes of determining the number of a PHA's public housing units, and the relative modernization needs of PHAs: (i) HUD shall count as one unit: (A) Each public housing and section 23 bond-financed unit under the ACC, except that it shall count as one-fourth {[[Page 357]]} of a unit each existing unit under Turnkey III program. Units receiving operating subsidy only shall not be counted. (B) Each existing unit under the Mutual Help program. (ii) HUD shall add to the overall unit count units that are added to a PHA's inventory so long as the units are under ACC amendment and have reached DOFA by the date that HUD establishes for the Federal Fiscal Year in which the CFF is being run (hereafter called the ``reporting
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of existing modernization need under the CFF is the PHA's total estimated existing modernization need divided by the total existing modernization need of all PHAs. (4) PHA's formula share of accrual need. A PHA's formula share of accrual need under the CFF is the PHA's total estimated accrual need divided by the total existing accrual need of all PHAs. (5) PHA's formula share of capital need. A PHA's formula share of capital need under the CFF is the average of the PHA's share of existing modernization need and its share of accrual need (by which method each share is weighted 50%). (h) CFF capping. (1) For units that are eligible for funding under the CFF (including replacement housing units discussed below) a PHA's CFF share will be its share of capital need, as determined under the CFF, subject to the condition that no PHA's CFF share for units funded under CFF can be less than 94% of its formula share had the FFY 1999 formula system been applied to these CFF eligible units. The FFY 1999 formula system is based upon the FFY 1999 Comprehensive Grant formula system for PHAs with 250 or more units in FFY 1999 and upon the FFY 1999 Comprehensive Improvement Assistance Program (CIAP) formula system for PHAs with fewer than 250 units in FFY 1999. (2) For a Moving to Work PHA whose agreement provides that its capital formula share is to be calculated in accordance with the previously existing formula, the PHA's CFF share, during the term of the agreement, may be approximately the formula share that the PHA would have received had the FFY 1999 formula funding system been applied to the CFF eligible units. {[[Page 358]]} (i) Replacement housing factor to reflect formula need for developments with demolition and disposition occurring on or after October 1, 1998--(1) Replacement housing factor generally. PHAs that have a reduction in units attributable to demolition and disposition of units during the period (reflected in data maintained by HUD) that lowers the formula unit count for the CFF
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calculations qualify for application of a replacement housing factor, subject to satisfaction of criteria stated in paragraph (i)(5) of this section. (2) When applied. The replacement housing factor will be added, where applicable: (i) For the first 5 years after the reduction in units described in paragraph (i)(1) of this section, and (ii) For an additional 5 years if the planning, leveraging, obligation and expenditure requirements are met. As a prior condition of a PHA's receipt of additional funds for replacement housing provided for the second 5-year period or any portion thereof, a PHA must obtain a firm commitment of substantial additional funds other than public housing funds for replacement housing, as determined by HUD. (3) Computation of replacement housing factor. The replacement housing factor consists of the difference between the CFF share without the CFF share reduction of units attributable to demolition and disposition, and the CFF share that resulted after the reduction of units attributable to demolition and disposition. (4) Replacement housing funding in FFY 1998 and 1999. Units that received replacement housing funding in FFY 1998 will be treated as if they had received two years of replacement housing funding by FFY 2000. Units that received replacement housing funding in FFY 1999 will be treated as if they had received one year of replacement housing funding as of FFY 2000. (5) PHA eligibility for replacement housing factor. A PHA is eligible for application of this factor only if the PHA satisfies the following criteria: (i) The PHA requests the application of the replacement factor; (ii) The PHA will use the funding in question only for replacement housing; (iii) The PHA will use the restored funding that results from the use of the replacement factor to provide replacement housing in accordance with the PHA's five-
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as a result of the replacement housing factor within: {[[Page 359]]} (A) 24 months from the date that funds become available to the PHA; or (B) With specific HUD approval, 24 months from the date that the PHA accumulates adequate funds to undertake replacement housing. (ii) To the extent the PHA has not obligated any funds provided as a result of the replacement housing factor within the times required by this paragraph, or expended such funds within a reasonable time, HUD shall reduce the amount of funds to be provided to the PHA as a result of the application of the second 5 years of the replacement housing factor. (j) Performance reward factor. (1) PHAs that are designated high performers under the Public Housing Assessment System (PHAS) for their most recent fiscal year can receive a performance bonus that is: (i) 3% above their base formula amount in the first five years these awards are given (for any year in this 5-year period in which the performance reward is earned); and (ii) 5% above their base formula amount in future years (for any year in which the performance reward is earned). (2) The performance bonus is subject only to the condition that no PHA will lose more than 5% of its base formula amount as a result of the redistribution of funding from non-high performers to high performers. (k) Eligible expenses. (1) Eligible expenses include the following: (i) Development, financing, and modernization of public housing projects, including the redesign, reconstruction, and reconfiguration of public housing sites and buildings (including accessibility improvements) and the development of mixed-finance projects; (ii) Vacancy reduction; (iii) Addressing deferred maintenance needs and the replacement of obsolete utility systems and dwelling equipment; (iv) Planned code compliance; (v) Management improvements; (vi) Demolition and replacement;
year PHA plan, as approved by HUD under part 903 of this chapter; (iv) The PHA has not received funding for public housing units that will replace the lost units under the public housing development, Major Reconstruction of Obsolete Public Housing, HOPE VI programs, or programs that otherwise provide for replacement with public housing units; (v) The PHA, if designated troubled by HUD and not already under the direction of HUD or a court-appointed receiver, in accordance with part 902 of this chapter, uses an Alternative Management Entity as defined in part 902 of this chapter for development of replacement housing and complies with any applicable provisions of its Memorandum of Agreement executed with HUD under that part; and (vi) The PHA undertakes any development of replacement housing in accordance with applicable HUD requirements and regulations. (6) Failure to provide replacement housing in a timely fashion. (i) A PHA will be subject to the actions described in paragraph (i)(7)(ii) of this section if the PHA does not: (A) Use the restored funding that results from the use of the replacement housing factor to provide replacement housing in a timely fashion, as provided in paragraph (i)(7)(i) of this section and in accordance with applicable HUD requirements and regulations; and (B) Make reasonable progress on such use of the funding, in accordance with HUD requirements and regulations. (ii) If a PHA fails to act as described in paragraph (i)(6)(i), HUD will require appropriate corrective action under these regulations; may recapture and reallocate the funds; or may take other appropriate action. (7) Requirement to obligate and expend replacement housing factor funds within specified period. (i) In addition to the requirements otherwise applicable to obligation and expenditure of funds, PHAs are required to obligate assistance received
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(vii) Resident relocation; (viii) Capital expenditures to facilitate programs to improve the empowerment and economic self-sufficiency of public housing residents and to improve resident participation; (ix) Capital expenditures to improve the security and safety of residents; and (x) Homeownership activities, including programs under section 32 of the 1937 Act (42 U.S.C. 1437z-4). (2) Such assistance may involve the drawdown of funds on a schedule commensurate with construction draws for deposit into an interest earning escrow account to serve as collateral or credit enhancement for bonds issued by a public agency for the construction or rehabilitation of the development. [65 FR 14426, March 16, 2000, as amended at 65 FR 25446, May 2, 2000]
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Sec. 905.120 Penalties for slow obligation or expenditure of CFP assistance.
In addition to any other statutory, regulatory, or contractual sanctions available to HUD, the penalties for slow obligation or expenditure of CFP assistance will be applied as follows: (a) Obligation of amounts. (1) Except as provided in paragraph (b) of this section, a PHA must obligate any assistance received under this part not later than 24 months after, as applicable: (i) The date on which the funds become available to the PHA for obligation in the case of modernization; or (ii) The date on which the PHA accumulates adequate funds to undertake modernization, substantial rehabilitation, or new construction of units. (2) Notwithstanding paragraph (a)(1) of this section, any funds appropriated to a PHA for Fiscal Year 1997 or prior fiscal years shall be fully obligated by the PHA not later than September 30, 1999.
(b) Exceptions to obligation requirement--(1) Extension before expiration of obligation period. A PHA may request and HUD may approve a longer timeframe or HUD may, by prior approval granted before the expiration of the time period in paragraph (a) of this section, extend the time period under paragraph (a) of this section for an additional period not to exceed 12 months, based on: (i) The size of the PHA; (ii) The complexity of the capital program of the PHA; {[[Page 360]]} (iii) Any limitation on the ability of the PHA to obligate the amounts allocated for the PHA from the Capital Fund in a timely manner as a result of state or local law; or (iv) Such other factors as HUD determines to be relevant. (2) Extension of obligation period. HUD may extend the time period under paragraph (a) of this section for a PHA, for such period as HUD determines to be necessary, if HUD determines that the failure of the agency to obligate assistance in a timely manner is attributable to: (i) Litigation; (ii) Obtaining approvals of the federal government or a state or local government; (iii) Complying with environmental assessment and abatement requirements; (iv) Relocating residents; (v) An event beyond the control of the PHA; or (vi) Any other reason established by HUD by notice published in the Federal Register. (3) Disregard of minimal unobligated amounts. HUD will disregard the requirements of paragraph (a) of this section with respect to any unobligated amounts made available to a PHA, to the extent that the total of such amounts does not exceed 10 percent of the original amount made available to the PHA. (c) Effect of failure to comply--(1) Prohibition of new assistance. A PHA will not be awarded CFP assistance for any month during any fiscal year in which the PHA has funds unobligated in violation of paragraph (a) or (b) of this section.
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(2) Withholding of assistance. During any fiscal year described in paragraph (c)(1) of this section, HUD will withhold all assistance that would otherwise be provided to the PHA. If the PHA cures its failure to comply during the year, it shall be provided with the share attributable to the months remaining in the year. (3) Redistribution. The total amount of any funds not provided PHAs by operation of this section shall be allocated for PHAs determined to be high-performing under the Public Housing Assessment System (at 24 CFR part 902) (or the applicable performance evaluation program for public housing). (d) Expenditure of amounts--(1) In general. A PHA must spend any assistance received under this part not later than four years (plus the period of any extension approved by HUD under paragraph (b) of this section) after the date on which funds become available to the PHA for obligation. (2) Enforcement. HUD will enforce the requirement of paragraph (d)(1) of this section through default remedies up to and including withdrawal of the CFP funding. (e) Right of recapture. Any obligation entered into by a PHA is subject to the HUD's right to recapture the obligated amounts for violation by the PHA of the requirements of this section. [68 FR 45731, Aug. 1, 2003]
24 CFR 941 Public Housing Development
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 373-397] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 941_PUBLIC HOUSING DEVELOPMENT Subpart A_General 941.101 Purpose and scope. 941.102 Development methods and funding. 941.103 Definitions. Subpart B_PHA Eligibility and Program Requirements 941.201 PHA eligibility. 941.202 Site and neighborhood standards. 941.203 Design and construction standards. 941.205 PHA contracts. 941.207 Displacement, relocation, and acquisition. 941.208 Other Federal requirements. 941.209 Audit. Subpart C_Application and Proposal 941.301 Application. 941.302 Annual contributions contract; drawdowns and advances. 941.303 Site acquisition proposal. 941.304 Full proposal content. 941.305 Technical processing and approval. 941.306 Maximum project cost. Subpart D_Project Development
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941.401 Site and property acquisition. 941.402 Project design and construction. 941.403 Acceptance of work and contract settlement. 941.404 Completion of development. Subpart E_Performance Review 941.501 HUD review of PHA performance; sanctions. Subpart F_Public/Private Partnerships for the Mixed Finance Development of Public Housing Units 941.600 Purpose. 941.602 Applicability of other requirements. 941.604 Definitions. 941.606 Proposal. 941.608 Technical processing and approval. {[[Page 374]]} 941.610 Evidentiary materials and other documents. 941.612 Disbursement of grant funds. 941.614 HUD monitoring and review. 941.616 Sanctions. Authority: 42 U.S.C. 1437b, 1437c, 1437g, and 3535(d). Source: 45 FR 60838, Sept. 12, 1980, unless otherwise noted. Redesignated at 49 FR 6714, Feb. 23, 1984.
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(b) Scope. This part is the regulation under which a PHA develops low-income housing (excluding Indian housing), herein called public housing. (c) Approved information collections. The following sections of this part have been approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (42 U.S.C. 35013520) and assigned the OMB approval numbers indicated: --------------------------------------------------Approval No. Sections --------------------------------------------------2577-0033 941.207, 941.301, 941.303, 941.304, 941.606, 941.610. 2577-0036 941.205, 941.404. 2577-0039 941.402. --------------------------------------------------[61 FR 38016, July 22, 1996, as amended at 64 FR 13511, Mar. 19, 1999] Effective Date Notes: At 61 FR 38016, July 22, 1996, SEC. 941.101 was revised. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. When approval is obtained, HUD will publish notice of the effective date in the Federal Register.
Subpart A_General
Sec. 941.101 Purpose and scope.
(a) Purpose. The U.S. Housing Act of 1937 (Act), 42 U.S.C. 1437, authorizes HUD to assist public housing agencies (PHAs) with the development and operation of low-income housing projects and financial assistance in the form of grants (42 U.S.C. 1437c, 1437g, and 1437l). The purpose of the program is to develop units which serve the needs of public housing residents over the long term and have the lowest possible life cycle costs, taking into account future operating and replacement costs, as well as original capital investments.
Sec. 941.102 Development methods and funding.
(a) Methods. A PHA may use any generally accepted method of development including, but not limited to, conventional, turnkey, acquisition with or without rehabilitation, mixed-finance, and force account. (1) Conventional. Under this method, the PHA is responsible for selecting a site or property and designing the project. The PHA advertises for competitive bids to build or rehabilitate the development on the PHA-
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(b) Funding. A PHA may develop public housing with: (1) Development funds reserved by HUD for that purpose; (2) Modernization funds under section 14 of the Act (42 U.S.C. 1437l), to the extent authorized by law and under procedures approved by HUD; and/or (3) Funds available to it from any other source, consistent with SEC. 941.306(e), or as may be otherwise approved by HUD. (c) Limit on number of units. (1) General. A PHA may not develop public housing pursuant to this part beyond the lesser of the number of units that the PHA had under ACC on August 21, 1996, or the number of units for which it was receiving operating subsidy on that date, unless authorized by HUD. HUD may condition such authorization on the PHA's agreement that such incremental units, once developed, will be ineligible for capital and/or operating subsidies from HUD. (2) Replacement housing units. With respect to units constructed to replace public housing units that were demolished or disposed of, a PHA may use (in whole or in part) funding from non-HUD sources or from HUD funding not provided under the Act. However, development of such units must be approved by HUD in advance for them to be eligible for inclusion under the ACC. [61 FR 38016, July 22, 1996, as amended at 67 FR 76101, Dec. 10, 2002]
owned site. The PHA awards a construction contract in accordance with 24 CFR part 85. The contractor receives progress payments from the PHA during construction or rehabilitation and a final payment upon completion of the project in accordance with the construction contract. The conventional method may be used for either new construction or rehabilitation. (2) Turnkey. The turnkey method involves the advertisement and selection of a turnkey developer by the PHA, based on the best housing package for a site or property owned or to be purchased by the developer. Following HUD approval of the PHA's full proposal, the developer prepares the design and construction documents. The PHA and the developer execute the contract of sale to implement the PHA's full proposal. The developer is responsible for providing a completed housing project, which includes obtaining construction financing. Upon completion of project construction or rehabilitation in accordance with the contract of sale, the PHA purchases the development from the developer. This method may be used for either new construction or rehabilitation. (3) Acquisition. The acquisition method involves a purchase of existing property that requires little or no repair work. Any needed repair work is completed after acquisition, either by the PHA contracting to have the work done or by having the staff of the PHA perform the work. (4) Mixed-finance. This method involves financing from both public and private sources and may involve ownership of the public housing units by an entity other than the PHA. This method of development may be carried out {[[Page 375]]} by a PHA only in accordance with the requirements set forth in subpart F. (5) Force account. The force account method involves use of PHA staff to carry out new construction or rehabilitation. A PHA may only develop a full proposal based on the force account method if HUD has determined that the PHA has the capability to develop successfully the public housing units using this method.
Sec. 941.103 Definitions.
The terms HUD and Public Housing Agency (PHA) are defined in 24 CFR part 5. Act. The U.S. Housing Act of 1937 (42 U.S.C. 1437). Additional Project Costs (APC) means the sum of the following HUDapproved costs related to the development of a public housing project, which costs are not subject to the Total Development Cost limit but are included in the maximum project cost, as described in SEC. 941.306:
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(1) Demolition of, or remediation of environmental hazards associated with, public housing units that will not be replaced on the site; and (2) Extraordinary site costs that have been verified by an independent registered engineer (e.g., removal of underground utility systems, and replacement of off-site underground utility systems, extensive rock and/or soil removal and replacement, and amelioration of unusual site conditions such as unusual slopes, terraces, water catchments, lakes, etc.) Annual Contributions Contract (ACC). A contract (in the form prescribed by HUD) for loans and contributions, which may be in the form of grants, whereby HUD agrees to provide financial assistance and the PHA agrees to comply with HUD requirements for the development and operation of a public housing project. Community Renewal Cost (CRC) means the sum of the following HUDapproved costs related to the development of a public housing project: planning (including proposal preparation), administration, site acquisition, relocation, demolition of, and site remediation of environmental hazards associated with, public housing units that will be replaced on the project site, interest and carrying charges, off-site facilities, community buildings and non-dwelling facilities, contingency allowance, insurance premiums, any initial operating deficit, onsite streets, on-site utilities, and other costs necessary to develop the project that are not covered under APC or Housing Construction Cost. Construction Contract. A contract between the PHA and a contractor to build or rehabilitate a project using the conventional development method. Construction documents. The working drawings and construction specifications and the rehabilitation work write-ups, where applicable, that set forth the work to be done under a construction contract or contract of sale. Contract of sale. A contract between the PHA and a developer whereby the PHA
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agrees to purchase a completed {[[Page 376]]} project after construction or rehabilitation by a developer using the turnkey development method. Cooperation Agreement. An agreement between a PHA and the applicable local governing body or bodies which assures exemption from real and personal property taxes, provides for local support and services for the development and operation of a public housing project, and provides for PHA payments in lieu of taxes. Design documents. The preliminary drawings and specifications and the preliminary rehabilitation work write-ups, where applicable, in sufficient detail to define the extent of construction or rehabilitation and demonstrate compliance with HUD design and construction standards. Housing Construction Cost (HCC) means the sum of the following HUDapproved costs related to the development of a public housing project: dwelling unit hard costs (including construction and equipment); builder's overhead and profit; the cost of extending utilities from the street to the public housing project; finish landscaping; and the payment of Davis-Bacon wage rates. Proposal. A document submitted by a PHA to HUD, in accordance with subpart C of this part, for approval of the development of a public housing project. As used in this part, ``proposal'' refers to both the ``site acquisition proposal'' (SEC. 941.303), and the ``full proposal'' (SEC. 941.304), unless specifically indicated otherwise. Public housing capital assistance means assistance provided by HUD under the Act or the HOPE VI program in connection with the development of public housing under this part, including: Capital Fund assistance provided under section 9(d) of the Act, public housing development assistance provided under section 5 of the Act, Operating Fund assistance used for capital purposes under section 9(g)(1) or (g)(2) of the Act, and HOPE VI grant assistance.
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to develop and implement the PHA's proposal. HUD shall review the solicitation and the selection before award of a contract is made by such a PHA. (d) Local cooperation. The PHA must provide a cooperation agreement between the PHA and the applicable local governing body for the area in which the public housing project is to be located as evidence that the local governing body will provide the local cooperation required by HUD pursuant to the Act. This local cooperation shall {[[Page 377]]} include exemption from real and personal property taxes, acceptance of PHA payments in lieu of taxes, and the provision at no cost or at no greater cost by the local governing body of the same public services and facilities normally furnished to others in the community. [45 FR 60838, Sept. 12, 1980. Redesignated at 49 FR 6714, Feb. 23, 1984, as amended at 61 FR 38017, July 22, 1996]
Reformulation. The procedure by which HUD approves division of a project (including units and related funds) into two or more projects, or combining two or more projects into one, or redistributing units and related funds in a project among two or more projects, in order to provide PHAs with the flexibility to adapt to site availability, to resolve development problems, to acquire buildings ready for development (before acquisition of other buildings), and to save on interest and initial operating costs. Total Development Cost (TDC) limit. The maximum amount of public housing capital assistance that can be used to pay for Housing Construction Costs and Community Renewal Costs in connection with the development of a public housing project, as determined under SEC. 941.306(b)(2). The TDC limit does not apply to Additional Project Costs. [45 FR 60838, Sept. 12, 1980, as amended at 56 FR 13282, Apr. 1, 1991; 58 FR 62524, Nov. 29, 1993; 61 FR 5214, Feb. 9, 1996; 61 FR 38017, July 22, 1996; 62 FR 27125, May 16, 1997; 67 FR 76101, Dec. 10, 2002]
Sec. 941.202 Site and neighborhood standards.
Proposed sites for public housing projects to be newly constructed or rehabilitated must be approved by the field office as meeting the following standards: (a) The site must be adequate in size, exposure and contour to accommodate the number and type of units proposed, and adequate utilities (e.g., water, sewer, gas and electricity) and streets must be available to service the site. (b) The site and neighborhood must be suitable from the standpoint of facilitating and furthering full compliance with the applicable provisions of Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, E.O. 11063, and HUD regulations issued pursuant thereto. (c)(1)The site for new construction projects must not be located in: (i) An area of minority concentration unless (A) sufficient, comparable opportunities exist for housing for minority families, in the income range to be served by the proposed project, outside areas of
Subpart B_PHA Eligibility and Program Requirements
Sec. 941.201 PHA eligibility.
(a) General. In order to participate in the public housing program, a PHA must be approved as an eligible PHA. HUD will determine eligibility based on a showing that the PHA has the legal authority and local cooperation required by this part. (b) Legal authority. The PHA must demonstrate that it has the legal authority to develop, own, and operate a public housing project under the Act. (c) Troubled PHAs. Unless HUD determines that a PHA that has been classified as troubled or modernizationtroubled, in accordance with 24 CFR part 901, has adequate capacity to develop public housing units, the PHA so classified shall engage a HUD-approved program manager
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minority concentration, or (B) the project is necessary to meet overriding housing needs which cannot otherwise feasibly be met in that housing market area. An ``overriding need'' may not serve as the basis for determining that a site is acceptable if the only reason the need cannot otherwise feasibly be met is that discrimination on the basis of race, color, religion, creed, sex, or national origin renders sites outside areas of minority concentration unavailable; or (ii) A racially mixed area if the project will cause a significant increase in the proportion of minority to non-minority residents in the area. (2) Notwithstanding any other provision of this paragraph (c), public housing units constructed after demolition of public housing units may be built on the original public housing site, or in the same neighborhood, if one of the following criteria is satisfied: (i) The number of public housing units being constructed is no more than 50 percent of the number of units in the original project; (ii) In the case of replacement of a currently occupied project, the number of public housing units being constructed is the minimum number needed to house current residents who want to remain at the site; or (iii) The public housing units being constructed constitute no more than twentyfive units. (d) The site must promote greater choice of housing opportunities and avoid undue concentration of assisted persons in areas containing a high proportion of lowincome persons. (e) The site must be free from adverse environmental conditions, natural or manmade, such as instability, flooding, septic tank back-ups, sewage hazards or mudslides; harmful air pollution, smoke or dust; excessive noise vibration, vehicular traffic, rodent or vermin infestation; or fire hazards. The neighborhood must not be one which is seriously detrimental to family life or in which substandard dwellings or other undesirable elements predominate, unless there is actively in progress a concerted
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program to remedy the undesirable conditions. (f) The site must comply with any applicable conditions in the local plan approved by HUD. (g) The housing must be accessible to social, recreational, educational, commercial, and health facilities and services, and other municipal facilities and services that are at least equivalent to those typically found in neighborhoods consisting largely of similar unassisted standard housing. (h) Travel time and cost via public transportation or private automobile, from the neighborhood to places of employment providing a range of jobs for low-income workers, must not be excessive. (While it is important that elderly housing not be totally isolated from employment opportunities, this requirement need not be adhered to rigidly for such projects.) {[[Page 378]]} (i) The project may not be built on a site that has occupants unless the relocation requirements referred to in SEC. 941.207 are met. (j) The project may not be built in an area that has been identified by HUD as having special flood hazards and in which the sale of flood insurance has been made available under the National Flood Insurance Act of 1968, unless the project is covered by flood insurance as required by the Flood Disaster Protection Act of 1973, and it meets any relevant HUD standards and local requirements. [45 FR 60838, Sept. 12, 1980. Redesignated at 49 FR 6714, Feb. 23, 1984, as amended at 61 FR 38017, July 22, 1996]
Sec. 941.203 Design and construction standards.
(a) Physical structures shall be designed, constructed and equipped so as to improve or harmonize with the neighborhoods they occupy, meet contemporary standards of modest comfort and liveability, promote security, and be attractive and marketable to the people they are intended to serve. Building design and
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HUD review or approval with the exception of: (1) All forms of site or property acquisition contracts regardless of development method; and (2) Contracts whose amount exceeds a contract approval threshold established by HUD for that PHA; and (3) A contract for the selection of a program manager to develop and implement the PHA's proposal (see SEC. 941.201(c)). (d) Each PHA shall certify before executing any contract with a contractor that the contractor is not suspended, debarred, or otherwise ineligible under 24 CFR part 24. The PHA also shall ensure that all subgrantees, contractors, and subcontractors select only contractors who are not listed as suspended, debarred, or otherwise ineligible under 24 CFR part 24. [61 FR 38018, July 22, 1996] Effective Date Note: At 61 FR 38018, July 22, 1996, SEC. 941.205 was revised. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. When approval is obtained, HUD will publish notice of the effective date in the Federal Register. {[[Page 379]]}
construction shall strive to encourage in residents a proprietary sense, whether or not homeownership is intended or contemplated. (b) Projects must comply with: (1) A national building code, such as Uniform Building Code, Council of American Building Officials Code, or Building Officials Conference of America Code; (2) Applicable State and local laws, codes, ordinances, and regulations; and (3) Other Federal requirements, including any Federal fire-safety requirements and HUD minimum property standards (e.g., 24 CFR part 200, subpart S, and SEC. 941.208). (c) Projects for families with children shall consist to the maximum extent practicable of low-density housing (e.g., non-elevator structures, scattered sites or other types of low-density developments appropriate in the community). (d) High-rise elevator structures shall not be provided for families with children regardless of density, unless the PHA demonstrates and HUD determines that there is no practical alternative. High-rise buildings for the elderly may be used if the PHA demonstrates and HUD determines that such construction is appropriate, taking into consideration land costs, the safety and security of the prospective occupants, and the availability of community services. [61 FR 38017, July 22, 1996]
Sec. 941.207 Displacement, relocation, and acquisition.
(a) Minimizing displacement. Consistent with the other goals and objectives of this part, the PHA shall assure that it has taken all reasonable steps to minimize the displacement of persons (households, businesses, nonprofit organizations, and farms) as a result of a project assisted under this part. (b) Temporary relocation. Only residential tenants who are eligible under 24 CFR 913.103 and who meet the PHA standards for tenancy established pursuant to 24 CFR 960.204 will be permitted to continue in occupancy. Any residential tenant who (though not required to move permanently) must relocate temporarily
Sec. 941.205 PHA contracts.
(a) ACC requirements. In order to be considered as eligible project expenses, all development related contracts entered into by the PHA shall provide for compliance with the provisions of the ACC. (b) Contract forms. HUD may prescribe the form of any development related contracts, and the PHA shall use such forms. If a form is not prescribed, the PHA may develop its own form; however, it must contain all applicable federal requirements. (c) When HUD approval is required. The PHA is authorized to execute all development-related contracts without prior
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(e.g., to permit rehabilitation or major reconstruction) shall be provided: (1) Reimbursement for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including the cost of moving to and from the temporary housing, any increase in monthly rent/ utility costs and incidental expenses. (2) Appropriate advisory services, including reasonable advance written notice of: (i) The date and approximate duration of the temporary relocation; (ii) The location of the suitable, decent, safe and sanitary housing to be made available for the temporary period; (iii) The terms and conditions under which the tenant may lease and occupy a suitable, decent, safe, and sanitary dwelling in the building/ complex following completion of the project; and (iv) The provisions of paragraph (b)(1) of this section. (c) Relocation assistance for displaced persons. A ``displaced person'' (defined in paragraph (h) of this section) must be provided relocation assistance at the levels described in, and in accordance with the requirements of, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA) (42 U.S.C. 4601-4655) and implementing regulations at 49 CFR part 24. A ``displaced person'' shall be advised of his/her rights under the Fair Housing Act (42 U.S.C. 3601-19), and, if the representative comparable replacement dwelling used to establish the amount of the replacement housing payment to be provided to a minority person is located in an area of minority concentration, such person also shall be given, if possible, referrals to comparable and suitable, decent, safe, and sanitary replacement dwellings not located in such areas. (d) Real property acquisition requirements. The acquisition of real property for a project is subject to the URA and the requirements in 49 CFR part 24,
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subpart B. With respect to the Turnkey method of development (see 24 CFR 941.102(b)), 49 CFR 24.101(a) (1) and (2) apply to the PHA/developer and developer/owner transactions, respectively. (e) Notices. (1) As soon as possible after the date described in paragraph (h)(1)(i) of this section, the PHA shall issue a general information notice (described in 49 CFR 24.203(a)) to each occupant of the property. (2) At the time of the initiation of negotiations (defined in paragraph (i) of this section), the PHA shall issue an appropriate written notice to each person occupying the property. Those to be displaced shall be issued a notice of eligibility for relocation assistance. (This notice may be combined with the 90-day notice under 49 CFR 24.203(c).) Tenants (eligible under 24 CFR 913.103 and the standards for tenancy established in accordance with 24 CFR 960.204) who will not be displaced shall be issued a notice offering the tenant the opportunity to enter into a lease to continue in occupancy of the property under reasonable terms and conditions. (Also, see paragraph (h)(1)(iii) of this section.) (f) Appeals. A person who disagrees with the PHA's determination concerning whether the person qualifies as a ``displaced person,'' or the amount of relocation assistance for which the person is eligible, may file a written appeal of that determination with the PHA. A person who is dissatisfied with the PHA's determination on his or her appeal may submit a written request for review of that determination to the HUD Field Office. (g) Responsibility of PHA. (1) The PHA shall certify (i.e., provide assurance of compliance, as required by 49 CFR part 24) that it will comply with the URA, the regulations at 49 CFR part 24, and {[[Page 380]]} the requirements of this section, and shall ensure such compliance notwithstanding any third party's contractual obligation to the PHA to comply. The certification in the PHA's ``Resolution in Support of Public Housing Project'' that the
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negotiations,'' (defined in paragraph (i) of this section), if the move occurs before the tenant is provided written notice offering him or her the opportunity to lease and occupy a suitable, decent, safe, and sanitary dwelling in the same building/complex, under reasonable terms and conditions, upon completion of the project. Such reasonable terms and conditions include a monthly rent and estimated average monthly utility costs that do not exceed the amount determined in accordance with 24 CFR 913.107; or (iv) A tenant-occupant of a dwelling who is required to relocate temporarily, but does not return to the building/complex, if either: (A) The tenant is not offered payment for all reasonable out-ofpocket expenses incurred in connection with the temporary relocation, including the cost of moving to and from the temporarily occupied unit, any increased housing costs and incidental expenses; or (B) Other conditions of the temporary relocation are not reasonable; or (v) A tenant-occupant of a dwelling who moves from the building/ complex permanently after he or she has been required to move to another dwelling unit in the same building/complex in order to carry out the project, if either: (A) The tenant is not offered reimbursement for all reasonable outof-pocket expenses incurred in connection with the move; or (B) Other conditions of the move are not reasonable; or (2) Notwithstanding the provisions of paragraph (h)(1) of this section, a person does not qualify as a ``displaced person'' (and is not eligible for relocation assistance under the URA or this section), if: (i) The person has been evicted for serious or repeated violation of the terms and conditions of the lease or occupancy agreement, violation of applicable Federal, State or local law, or other good cause, and the PHA determines that the eviction was not undertaken {[[Page 381]]} for the purpose of evading the obligation to provide relocation assistance;
PHA will comply with all the requirements of 24 CFR part 941 shall constitute the PHA's certification of compliance with the URA, the implementing regulations at 49 CFR part 24, and this section. (2) The cost of required assistance is an eligible project cost in the same manner and to the same extent as other project costs. Such costs may also be paid from funds available from other sources. (3) The PHA must maintain records in sufficient detail to demonstrate compliance with this section, including data indicating the race, ethnic, gender and disability status of displaced persons. (h) Definition of displaced person. (1) For purposes of this section, the term displaced person means a person (household, business, nonprofit organization, or farm) that moves from real property, or moves personal property from real property, permanently, as a direct result of acquisition, rehabilitation, or demolition for a project assisted under this part. The term ``displaced person'' includes, but may not be limited to: (i) A person who moves permanently from the real property after receiving a notice from the PHA or property owner that requires such move, if the move occurs on or after: (A) For conventional or acquisition projects, the date of approval by HUD of the PHA proposal incorporating the site, or for scattered sites, the date HUD approves the applicable site; (B) For turnkey projects, the date the PHA proposal is submitted to HUD; or (C) For major reconstruction of obsolete public housing projects, the date the PHA issues the invitation for bids for the project; (ii) Any person, including a person who moves before the date described in paragraph (h)(1)(i) of this section, that the PHA or HUD determines was displaced as a direct result of acquisition, rehabilitation, or demolition for the assisted project; or (iii) A tenant-occupant of a dwelling unit who moves from the building/complex, permanently, after the ``initiation of
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(ii) The person moved into the property after the date described in paragraph (h)(1)(i) of this section, but before commencing occupancy, received written notice of the project, its possible impact on the person (e.g., that the person may be displaced, temporarily relocated, or suffer a rent increase) and the fact that he or she would not qualify as a ``displaced person'' (or for assistance under this section) as a result of the project; (iii) The person is ineligible under 49 CFR 24.2(g)(2); or (iv) HUD determines that the person was not displaced as a direct result of acquisition, rehabilitation, or demolition for the project. (3) The PHA may, at any time, ask HUD to determine whether a displacement is or would be covered by this section. (i) Definition of initiation of negotiations. For purposes of this section, the term ``initiation of negotiations'' means: (1) For conventional or acquisition projects: (i) Where the PHA purchases the real property through an arm'slength transaction (as described in 49 CFR 24.101(a)(1)), the seller's acceptance of the PHA's written offer to purchase the property (i.e., the seller's execution of form HUD-51971-II), provided the PHA later purchases the property; or such other date, as may be determined by the PHA with the approval of the HUD Field Office; or (ii) Where the PHA's purchase of the real property does not qualify as an arm'slength transaction under 49 CFR 24.101(a)(1), the delivery of the initial written purchase offer from the PHA to the Owner of the property (i.e., the PHA executed form HUD-51971-II). However, if the PHA issues a notice of intent to acquire the property, and a person moves after that notice, but before the initial written purchase offer, the ``initiation of negotiations'' is the actual move of the person from the property; (2) For turnkey projects, HUD Field Office approval of the PHA's proposal incorporating the developer's proposal,
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provided the contract of sale is later executed; or (3) For major reconstruction of obsolete projects, the PHA's issuance of the invitation for bids for the project. (Approved by Office of Management and Budget under OMB Control Number 2506-0121) [59 FR 29344, June 6, 1994]
Sec. 941.208 Other Federal requirements.
(a) General. The PHA shall be subject to all statutory, regulatory, and executive order requirements applicable to public housing development (see, e.g., 24 CFR parts 5, 8, 35, 50, and 965), as may be more fully described by HUD in notices, handbooks, or other guidance. (b) Lead-based paint. The relevant requirements of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 48214846), the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing regulations at part 35, subparts A, B, L, and R of this title apply to the program. [61 FR 38018, July 22, 1996, as amended at 64 FR 50228, Sept. 15, 1999]
Sec. 941.209 Audit.
All PHAs that receive funds under this part for the development of low-income housing shall comply with audit requirements in 24 CFR part 44. [50 FR 39092, Sept. 27, 1985; 51 FR 30480, Aug. 27, 1986]
Subpart C_Application and Proposal
Source: 61 FR 38018, July 22, 1996, unless otherwise noted.
Sec. 941.301 Application.
If funding is made available for public housing development, HUD will provide information about fund allocation, application deadline, and selection criteria
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and procedures through a Notice of Funding Availability (NOFA). Effective Date Note: At 61 FR 38018, July 22, 1996, SEC. 941.301 was revised. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. When {[[Page 382]]} approval is obtained, HUD will publish notice of the effective date in the Federal Register.
Sec. 941.303 Site acquisition proposal.
When a PHA determines that it is necessary to acquire land for development through new construction, it may spend funds authorized under this part to acquire development sites. HUD must approve a PHA's proposed use of funds before it may acquire sites in this manner. A PHA must submit the following documents for HUD review and approval, in accordance with the standards set forth in SEC. 941.305: (a) Justification. A justification for acquiring land prior to PHA proposal approval; (b) Site information. An identification and description of the proposed site, site plan, neighborhood, and evidence of PHA control of the site for at least sixty (60) days after proposal submission. (c) Zoning. Evidence that construction or rehabilitation is permitted by current zoning ordinances or regulations or evidence to indicate that needed rezoning is likely and will not delay the project. (d) Development schedule. A copy of the PHA development schedule, including the PHA architect estimates of the time required to complete each major development stage. (e) Environmental assessment. All available environmental information on the proposed development (to expedite the HUD environmental review). (f) Appraisal. An appraisal of the proposed site by an independent, statecertified appraiser. Effective Date Note: At 61 FR 38018, July 22, 1996, SEC. 941.303 was revised. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. When approval is obtained, HUD will publish notice of the effective date in the Federal Register.
Sec. 941.302 Annual contributions contract; drawdowns and advances.
(a) A PHA wishing to develop public housing shall execute an ACC or ACC amendment covering the entire amount of reserved development funds or the amount of modernization funds (under section 14 of the Act, 42 U.S.C. 1437l) it proposes to use in accordance with this part. This ACC or ACC amendment must be executed by both the PHA and HUD before funds can be provided to the PHA. (b) Until HUD has approved a PHA's full proposal, a PHA may only draw down funds under the ACC for pre-development costs for materials and services related to proposal preparation and submission. Expenditures for pre-development costs shall not exceed three percent of the total development cost stated in the executed ACC. (c) HUD may approve the following in writing: (1) Amounts in excess of three percent of TDC for pre-development costs; and/or (2) Drawdown of funds to enable a PHA to acquire a site after approval by HUD of the PHA's site acquisition proposal, in accordance with SEC. 941.303. (d) After HUD approval of the full proposal, the PHA may draw down additional funds under the ACC to develop the public housing units in accordance with the approved full proposal.
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Sec. 941.304 Full proposal content.
Each full proposal shall include at a minimum the following: (a) Project description. A description of the housing, including the number of units, schematic drawings of the proposed building and unit plans, outline specifications or rehabilitation work write-ups, and the types and amounts of non-dwelling space to be provided; (b) Description of development method. A description of the PHA's proposed development method, and a demonstration by the PHA that it will be able to use this method successfully to develop the public housing units. If the PHA proposes to use the turnkey method, it must submit a Board-approved certification that the developer was selected as the result of a public solicitation for proposals and that the selection was based on an objective rating system, using such factors as site location, project design, price, and developer experience. If the PHA proposes to use the acquisition method, the PHA must submit a certification by the PHA and {[[Page 383]]} owner that the property was not constructed with the intent that it would be sold to the PHA. If the PHA proposes to use the mixed-finance method, it should have consulted with HUD on its plans. If the PHA proposes to use the force account method to develop the public housing units, it must have already received approval from HUD of its capability to carry out the development successfully in this manner; (c) Site information. An identification and description of the proposed site, site plan, neighborhood, and evidence of PHA or turnkey developer control of the site for at least sixty (60) days after proposal submission; (d) Project costs. (1) Categories of cost. The detailed budget of the costs of developing the project, in accordance with the form prescribed by HUD. With respect to costs of demolition and relocation, the description must distinguish between costs related to existing public housing property
and costs related to acquisition of a new public housing site; (2) Budget and payment schedule. A budget that identifies the sources of funding for relocation benefits, and a payment schedule anticipated to be provided under a construction contract; (e) Appraisal. An appraisal of the proposed site or property by an independent, state-certified appraiser; (f) Financial feasibility. Identification of funds sufficient to complete the development, including a reasonable contingency; (g) Zoning. Evidence that construction or rehabilitation is permitted by current zoning ordinances or regulations or evidence to indicate that needed rezoning is likely and will not delay the project; (h) Facilities. A statement addressing the adequacy of existing facilities and services for the prospective occupants of the project, a description of public improvements needed to ensure the viability of the proposed project with a description of the sources of funds available to carry out such improvements, and, if applicable, a statement addressing the minority enrollment and capacity of the school system to absorb the number of school-aged children expected to reside in the project; (i) Relocation. A certification by the PHA that it will comply with all applicable Federal relocation requirements; (j) Life-cycle analysis. For new construction and substantial rehabilitation, the criteria to be used in equipping the proposed project(s) with heating and cooling systems, and which shall include a life-cycle cost analysis of the installation, maintenance and operating costs of such systems pursuant to section 13 of the Act (42 U.S.C. 1437k); (k) Project development schedule. A copy of the PHA development schedule, including the PHA architect or turnkey developer estimates of the time required to complete each major development stage; (l) Environmental assessment. All available environmental information on the proposed development (to expedite the HUD environmental review);
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reviews with respect to the proposal under review. If HUD determines that the proposal under review is acceptable, it shall notify the PHA in writing and shall forward to it for execution an ACC (or ACC amendment). If the PHA already has executed an ACC (or ACC amendment) for the entire reserved amount, HUD shall notify the PHA that it is authorized to draw down funds in accordance with SEC. 941.302. (b) Approved proposal. Units developed under this part shall be developed only in accordance with an approved proposal. (c) Approved amendments. Material changes in the approved proposal, including any increase in the budget or any change in the payment schedule, require an amendment to the proposal, which must be approved by HUD. The determination of what constitutes a material change will be made by HUD.
(m) Occupancy and operation policies. Statement of all PHA policies and practices that will be used in occupancy and operation that contribute to an overall objective of ending the social and economic isolation of low income people and promoting their economic independence; (n) New construction certification. If a PHA's proposal involves new construction, evidence of compliance with section 6(h) of the Act in one of the following two ways: (1) Submission of a PHA comparison of the cost of new construction in the neighborhood where the PHA proposes to construct the housing and the cost of acquisition of existing housing (with or without rehabilitation) in the same neighborhood; or (2) Certification by the PHA, accompanied by supporting documentation, that there is insufficient existing housing in the neighborhood to develop public housing through acquisition; and (o) Additional HUD-requested information. Any additional information that may be needed for HUD to determine whether it can approve the proposal pursuant to SEC. 941.305. Effective Date Note: At 61 FR 38018, July 22, 1996, SEC. 941.304 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. {[[Page 384]]}
Sec. 941.306 Maximum project cost.
(a) Calculation of maximum project cost. The maximum project cost represents the total amount of public housing capital assistance used in connection with the development of a public housing project, and includes: (1) project costs that are subject to the TDC limit (i.e., Housing Construction Costs and Community Renewal Costs); and (2) project costs that are not subject to the TDC limit (i.e., Additional Project Costs). The total project cost to be funded with public housing capital assistance, as set forth in the proposal and as approved by HUD, becomes the maximum project cost stated in the ACC. Upon completion of the project, the actual project cost is determined based upon the amount of public housing capital assistance expended for the project, and this becomes the maximum project cost for purposes of the ACC. (b) TDC limit. (1) Public housing capital assistance may not be used to pay for Housing Construction Costs and Community Renewal Costs in excess of the
Sec. 941.305 Technical processing and approval.
(a) Standards. HUD shall review the full proposal, submitted in accordance with SEC. 941.304, and the site acquisition proposal, submitted in accordance with SEC. 941.303, to determine whether each proposal complies with all statutory, executive order, and regulatory requirements applicable to public housing development including, if applicable, the comments received as a result of Intergovernmental Review. In addition, HUD shall carry out any necessary statutory and executive order
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TDC limit, as determined under paragraph (b)(2) of this section. However, HOPE VI grantees will be eligible to request a TDC exception for public housing and HOPE VI funds awarded in Fiscal Year 1996 and prior years. No exceptions to HCC limits will be granted within the TDC limit. (2) Determination of TDC limit. HUD will determine the TDC for a public housing project as follows: (i) Step 1: Unit construction cost guideline. HUD will first determine the applicable ``construction cost guideline'' averaging the current construction costs as listed in two nationally recognized residential construction cost indices for publicly bid construction of a good and sound quality for specific bedroom sizes and structure types. The two indices HUD will use for this purpose are the R.S. Means cost index for construction of ``average'' quality and the Marshal & Swift cost index for construction of ``good'' quality. HUD has the discretion to change the cost indices to other such indices that reflect comparable housing construction quality through a notice published in the Federal Register. (ii) Step 2: Bedroom size and structure types. The construction cost guideline is then multiplied by the number of units for each bedroom size and structure type. (iii) Step 3: Elevator and non-elevator type structures. HUD will then multiply the resulting amounts from step 2 by 1.6 for elevator type structures and by 1.75 for nonelevator type structures. (iv) Step 4: TDC limit. The TDC limit for a project is calculated by adding the resulting amounts from step 3 for all the public housing units in the project. (3) Costs not subject to the TDC limit. Additional Project Costs are not subject to the TDC limit described in paragraph (b)(2) of this section. (4) Funds not subject to the TDC limit. A PHA may use funding sources not {[[Page 385]]} subject to the TDC limit (e.g., CDBG funds, HOME funds, low-income tax credits, private donations, private financing, etc.) to cover project costs that exceed the
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TDC limit or the Housing Construction Cost limit described in paragraph (c) of this section. Such funds, however, may not be used for items that would result in substantially increased operating, maintenance or replacement costs, and must meet the requirements of section 102 of the HUD Reform Act (42 U.S.C. 3545). These funds must be included in the project development cost budget and legally acceptable written commitments for such funds must be provided by the PHA for HUD approval. (c) Housing Construction Costs. (1) General. A PHA may not use public housing capital assistance to pay for Housing Construction Costs in excess of the amount determined under paragraph (c)(2) of this section. (2) Determination of Housing Construction Cost limit. HUD will determine the Housing Construction Cost limit as listed in at least two nationally recognized residential construction cost indices for publicly bid construction of a good and sound quality for specific bedroom sizes and structure types. The two indices HUD will use for this purpose are the R.S. Means cost index for construction of ``average'' quality and the Marshal & Swift cost index for construction of ``good'' quality. HUD has the discretion to change the cost indices to other such indices that reflect comparable housing construction quality through a notice published in the Federal Register. The resulting construction cost guideline is then multiplied by the number of public housing units in the project based upon bedroom size and structure type. The Housing Construction Cost limit for a project is calculated by adding the resulting amounts for all public housing units in the project. (3) The Housing Construction Cost limit is not applicable to the acquisition of existing housing, whether or not such housing will be rehabilitated. The Total Development Cost limit is applicable to such acquisition. (d) Community Renewal Costs. Public housing capital assistance may be used to
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a PHA that has for other reasons been notified in writing that it may not use the procedure specified in paragraph (c)(1) of this section, that the site or property acquisition contract has been approved, the PHA shall submit to HUD evidence that title to {[[Page 386]]} the site or property is good and marketable. If HUD approves the title evidence, it will inform the PHA that it is authorized to acquire title to the site or property. The PHA shall record promptly the deed and declaration of trust in the form prescribed by HUD, and HUD may require the PHA to submit evidence of such recordation.
pay for Community Renewal Costs in an amount equivalent to the difference between the Housing Construction Costs paid for with public housing capital assistance and the TDC limit. (e) Rehabilitation of existing public housing projects. The HCC limit is not applicable and the TDC limit for modernization of existing public housing is 90% of the TDC limit as determined under SEC. 941.306(b)(2). This limitation does not apply to the rehabilitation of any property acquired pursuant to SEC. 941.102. [67 FR 76102, Dec. 10, 2002]
Subpart D_Project Development
Source: 61 FR 38020, July 22, 1996, unless otherwise noted.
Sec. 941.402 Project design and construction.
(a) Compliance with HUD construction standards and Federal procurement requirements. (1) General. A PHA may certify that its proposed design and construction plans for the development are in accordance with HUD's design and construction standards at SEC. 941.203, and that its bidding procedures are in accordance with Federal procurement requirements. (2) Limitation. In the case of a PHA determined to be troubled or modernization troubled in accordance with part 901 of this chapter or a PHA that has for other reasons been notified in writing that it may not use the procedure specified in paragraph (a)(1) of this section, the PHA must submit the proposed design and construction plans and its bidding procedures (unless HUD notifies the PHA that it may use the certification procedure specified in paragraph (a)(1) of this section). (b) Contract administration. The PHA shall be responsible for contract administration and shall contract for the services of an architect, or other person licensed under State law, to assist and advise the PHA in contract administration and inspections to assure that the work is done in accordance with HUD requirements. A HUD representative may periodically visit
Sec. 941.401 Site and property acquisition.
(a) Applicability. The provisions of this section apply to projects being developed under the conventional, acquisition, and force account methods, and may apply to other development methods, as deemed appropriate by HUD. (b) Purchase agreement. The purchase agreement shall reflect any conditions established by HUD, such as the site engineering studies that must be completed to determine whether the site is suitable for development of the project. (c) Title.--(1) General. After HUD approves the site or property acquisition contract and notifies the PHA that it is authorized to take title, the PHA shall obtain title in accordance with the following certification. The PHA shall certify to HUD that it obtained a title insurance policy that guaranteed that the title was good and marketable before taking title and that it promptly recorded the deed and declaration of trust in the form prescribed by HUD. (2) Limitation. After HUD notifies a PHA that has been determined to be troubled or modernization troubled in accordance with part 901 of this chapter, or
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the project site to monitor PHA contract administration. (c) Prevailing wage rates. See SEC. 965.101 of this chapter.
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Sec. 941.403 Acceptance of work and contract settlement.
(a) Notification of completion. The contractor or developer shall notify the PHA in writing when the contract work, including any approved off-site work, will be completed and ready for inspection. (b) Acceptance. (1) General. A PHA may carry out the final inspection of the work and may accept the completed work. If, upon inspection, the PHA determines that the work is complete and satisfactory, except for work that is appropriate for delayed completion, the work shall be accepted by the PHA. The PHA shall certify to HUD before it pays the contractor or developer that it has inspected the work and determined that it is acceptable and in compliance with the construction contract or contract of sale and HUD requirements. The PHA shall determine any hold-back for items of delayed completion, and the amount due and payable for the work that has been accepted including any conditions precedent to payment that are stated in the construction contract or contract of sale. The contractor or developer shall be paid for items of delayed construction only after inspection and acceptance of this work by the PHA. (2) Limitation. In the case of a PHA determined to be troubled or modernization troubled in accordance with part 901 of this chapter or a PHA that has for other reasons been notified in writing that it may not use the procedure specified in paragraph (b)(1) of this section, the procedure described in paragraph (b)(1) of this section will be followed, except that HUD must concur in the necessary PHA determinations and approvals. (c) Guarantees and warranties. The construction contract or contract of sale shall specify the project guaranty period and amounts to be withheld and shall provide for
assignment to the PHA of all manufacturer and supplier warranties required by the construction documents. The PHA shall inspect each dwelling unit and the overall project approximately three months after the beginning of the project guaranty period and three months before its expiration and also as may be necessary to exercise its rights before expiration of any warranties. The PHA shall require repair or replacement, prior to the expiration of the guaranty or warranty periods, of any defective items. (d) Title to turnkey projects. (1) General. When the work has been inspected and accepted on a turnkey project, in {[[Page 387]]} accordance with paragraph (b) of this section, the PHA is authorized to take title to the completed project in accordance with the following certification. The PHA shall certify to HUD that it obtained a title insurance policy that guaranteed that the title was good and marketable before taking title and that it promptly recorded the deed and declaration of trust in the form prescribed by HUD. (2) Limitation. After inspection and acceptance of the work in accordance with paragraph (b) of this section, a PHA that has been determined to be troubled or modernization troubled in accordance with part 901 of this chapter, or a PHA that has for other reasons been notified in writing that it may not use the procedure specified in paragraph (d)(1) of this section shall submit to HUD evidence that title to the completed project is good and marketable. If HUD approves the title evidence, it will inform the PHA that it is authorized to acquire title to the completed project. The PHA shall record promptly the deed and declaration of trust in the form prescribed by HUD, and HUD may require submission of evidence of such recordation.
Sec. 941.404 Completion of development.
(a) When all development has been completed and paid for, but not later than 12 months after the end of the initial operating
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development activities undertaken during the period under review conform substantially to the activities specified in the approved PHA proposal. HUD also shall review a PHA's development schedule to determine whether the PHA has carried out its development activities in a timely manner; (ii) HUD shall review a PHA's performance to determine whether the activities carried out comply with the requirements of the Act, and other applicable laws and regulations. (2) Continuing capacity. HUD shall determine whether the PHA has a continuing capacity to carry out its development plan in a timely manner. The primary factors to be considered in arriving at a determination that a PHA has a continuing capacity are those described in paragraph (a)(1) of this section (``conformity with PHA proposal''). HUD shall give particular attention to PHA efforts to accelerate the progress of the program and to prevent the recurrence of past deficiencies or noncompliance with applicable laws and regulations. {[[Page 388]]} (b) Notice of deficiency. Based on HUD reviews of PHA performance and findings of any of the deficiencies in paragraph (d) of this section, HUD may issue to the PHA a notice of deficiency stating the specific program requirements that the PHA has violated and requesting the PHA to take any of the actions specified in paragraph (e) of this section. (c) Corrective action order. (1) Based on HUD reviews of PHA performance and findings of any of the deficiencies in paragraph (d) of this section, HUD may issue to the PHA a corrective action order, whether or not a notice of deficiency has been issued previously with respect to the specific deficiency on which the corrective action order is based. HUD may order corrective action at any time by notifying the PHA of the specific program requirements that the PHA has violated, and specifying that any of the corrective actions listed in paragraph (e) of this section must be taken. HUD shall design corrective action
period unless a longer period is approved by HUD, the PHA shall submit a statement of the actual development cost. For this purpose, the initial operating period with respect to each project is the period commencing with the date of initiation of the project and ending with the earliest of the following three dates: the end of the calendar quarter in which ninety-five percent of the dwelling units in the project are occupied; the end of the calendar quarter that is six, seven, or eight months after the date of full availability of the project; or the end of the calendar quarter next preceding the date of physical completion of the project. (b) HUD shall review the statement and establish the actual development cost of the project, which becomes the maximum total development cost for purposes of the ACC. Effective Date Note: At 61 FR 38021, July 22, 1996, SEC. 941.404 was revised. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. When approval is obtained, HUD will publish notice of the effective date in the Federal Register.
Subpart E_Performance Review
Sec. 941.501 HUD review of PHA performance; sanctions.
(a) HUD determination. HUD shall carry out such reviews of the performance of each PHA as may be necessary or appropriate to make the determinations required by this paragraph (a), taking into consideration all available evidence. (1) Conformity with PHA proposal. HUD shall determine whether the PHA has carried out its activities under this subpart in a timely manner and in accordance with its approved proposal. (i) In making this determination, HUD shall review the PHA's performance under previous inspections, audit findings and other sources to determine whether the
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to prevent a continuation of the deficiency, mitigate any adverse effects of the deficiency to the extent possible, or prevent a recurrence of the same or similar deficiencies; (2) Before ordering corrective action, HUD shall notify the PHA and give it an opportunity to consult with HUD regarding the proposed action; (3) Any corrective action ordered by HUD shall become a condition of the grant agreement (ACC); (d) Basis for corrective action. HUD may order a PHA to take corrective action only if it determines: (1) The PHA has not carried out its activities under the development program in a timely manner and in accordance with its approved proposal, or HUD requirements, as determined in paragraph (a)(l) of this section; (2) The PHA does not have a continuing capacity to carry out its proposal in a timely manner or in accordance with its proposal or HUD requirements, as determined in paragraph (a)(2) of this section; (3) The PHA has failed to repay HUD for amounts awarded under the development programs that were improperly expended; (e) Types of corrective action. HUD may direct a PHA to take one or more of the following corrective actions: (1) Submit additional information: (i) Concerning the PHA's administrative, planning, budgeting, accounting, management, and evaluation functions to determine the cause for a PHA not meeting the standards in paragraphs (a)(1) or (a)(2) of this section; (ii) Explaining any steps the PHA is taking to correct the deficiencies; (iii) Documenting that PHA activities were not inconsistent with the PHA's proposal or other applicable laws, regulations or program requirements; and (iv) Demonstrating that the PHA has a continuing capacity to carry out the proposal in a timely manner; (2) Submit schedules for completing the work identified in its proposal and report
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periodically on its progress in meeting the schedules; (3) Notwithstanding 24 CFR 941.205(c), 24 CFR 941.402(a) and 24 CFR 85.36(g), submit to HUD documents for prior approval, which may include, but are not limited to: (i) Complete design, construction and bid documents (prior to soliciting bids); (ii) Complete rehabilitation drawings/specifications or work writeups; (iii) Development budgets, including modifications; (iv) Proposed award of contracts, including construction contracts, turnkey contracts of sale, letters of commitment, and contracts with the architect/engineer (prior to execution); (4) Submit additional material in support of one or more of the statements, resolutions, and certifications submitted as part of the PHA proposal, or periodic performance report; (5) Not incur financial obligations, or to suspend payments for one or more activities; (6) Reimburse, from non-HUD sources, one or more program accounts for any amounts improperly expended; (f) Failure to take corrective action. In cases where HUD has ordered corrective action and the PHA has failed to take the required actions within a reasonable time, as specified by HUD, HUD may take one or more of the following steps: {[[Page 389]]} (1) Terminate future draw downs and/or advances to the PHA. In such case, the amount of advances made to the PHA shall be repaid by the PHA from any funds or assets available for that purpose; (2) Require alternative management of development functions by an entity other than the PHA; (3) Cancel the fund reservation if the PHA fails to start (begin construction or rehabilitation), or complete (acquisition) within 30 months from the date of the fund reservation pursuant to section 5(k) of the Act; (4) Recapture for good cause any grant amounts previously provided to a PHA,
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units, or may consist of public housing and non-public housing units. (2) This subpart sets forth the requirements that must be met by the PHA and its partner(s) before HUD can approve a proposal for mixedfinance development, and also sets forth continuing requirements that apply throughout the development and operation of the development by the owner entity. (b) Under this subpart, public housing units that are built in a mixed-finance development must be comparable in size, location, external appearance, and distribution to the non-public housing units within the development.
based upon a determination that the PHA has failed to comply with the requirements of the development program. (g) Right to appeal. Before taking any of the actions described in paragraph (f) of this section, HUD shall notify the PHA and give it an opportunity, within a prescribed period of time, to present any arguments or additional facts and data concerning the proposed action. [61 FR 38021, July 22, 1996]
Subpart F_Public/Private Partnerships for the Mixed Finance Development of Public Housing Units
Source: 61 FR 19714, May 2, 1996, unless otherwise noted.
Sec. 941.602 Applicability of other requirements.
(a) Relationship of this subpart to other requirements in 24 CFR part 941. The requirements contained in this subpart apply only to the development of public housing units using mixed-finance development methods under this subpart and to the operation of public housing units that are owned, or that will be owned, by an owner entity under this subpart. Other requirements for the development of public housing, as set forth in subparts A through E of this part, shall not apply to the development of public housing units pursuant to this subpart, except as may be required by HUD. Applicable requirements include, but shall not be limited to, the following: (1) Section 941.103 (``Definitions'') (definitions of the following terms only shall apply to this subpart: ``Annual Contributions Contract (ACC),'' ``cooperation agreement,'' ``design documents,'' ``reformulation,'' and ``Total Development Cost (TDC).'' {[[Page 390]]} (2) Section 941.201 (``PHA eligibility'') (except that specific requirements governing the cooperation agreement, as set forth in SEC. 941.201(c), shall be determined in accordance with this subpart); (3) Section 941.202 (``Site and neighborhood standards'');
Sec. 941.600 Purpose.
(a)(1) This subpart authorizes a PHA to use a combination of private financing and public housing development funds to develop public housing units, and is designed to enable PHAs and their partners to structure transactions that make use of private and/or public sources of financing. Many potential scenarios for ownership and transaction structures exist, ranging from the PHA or its partner(s) holding no ownership interest, a partial ownership interest, or 100 percent of the ownership interest of the public housing units that are to be developed. PHAs and/or their partner(s) may choose to enter into a partnership or other contractual arrangement with a third-party entity for the mixedfinance development and/or ownership of public housing units. If this entity has primary responsibility along with the PHA for the development of these units, it is referred to for purposes of this subpart as the PHA's ``partner.'' The entity that ultimately owns the public housing units, whether or not the PHA retains an ownership interest, is referred to as the ``owner entity.'' The resulting ``mixed-finance'' developments may consist of 100 percent public housing
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(4) Section 941.203 (``Design and construction standards''); (5) Section 941.205 (``PHA contracts'') (except that the reference to ``development related contracts entered into by the PHA'' shall be construed to mean ``development related contracts entered into by the PHA or the owner entity''); (6) Section 941.207 (``Relocation and acquisition''); (7) Section 941.208 (``Other Federal requirements''); (8) Section 941.209 (``Audit''); (9) Section 941.306 (``Maximum development cost''); (10) Section 941.402 (``Project design and construction''); (11) Section 941.403 (``Acceptance of work and contract settlement''); (12) Section 941.404 (``Completion of development''); and (13) Section 941.501 (``HUD review of PHA performance; sanctions''). (b) Procedure in the event of a conflict between requirements. In the event of a conflict between a requirement contained in this subpart and an applicable requirement set forth in subparts A through E of this part, the requirements of this subpart shall apply, unless HUD otherwise so determines in writing. (c) HUD approval. For purposes of this subpart only, any action or approval that is required to be taken or provided by HUD or by the HUD field office, pursuant to a requirement set forth in subparts A through F of this part, shall be construed to mean that HUD Headquarters shall take such action or provide such approval, unless the field office is authorized in writing by Headquarters to carry out a specific function under this subpart. (d) Applicability of requirements pursuant to 24 CFR part 85. The requirements of 24 CFR part 85 are applicable to this subpart, subject to the following two provisos: (1) A PHA may select a partner using competitive proposal procedures for qualifications-based procurement (subject to negotiation of fair and reasonable
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compensation, including TDC and other applicable cost limitations); (2) An owner entity (which, as a private entity, would normally not be subject to part 24 CFR part 85) shall be required to comply with 24 CFR part 85 if HUD determines that the PHA or PHA instrumentality exercises significant functions within the owner entity with respect to managing the development of the proposed units. HUD may, on a casebycase basis, exempt such an owner entity from the need to comply with 24 CFR part 85 if it determines that the owner entity has developed an acceptable alternative procurement plan. [61 FR 19714, May 2, 1996, as amended at 61 FR 38022, July 22, 1996]
Sec. 941.604 Definitions.
In addition to the definitions set forth in SEC. 941.602(a)(1), the following definitions are applicable to this subpart: Development. A housing facility consisting of public housing units, and that may also consist of non-public housing units, that has been developed, or that will be developed, using mixed-finance strategies under this subpart. Mixed-finance. The combined use of publicly and privately financed sources of funds for the development of public housing units under this subpart. Owner Entity. The entity that will own the public housing units, if the PHA holds less than one hundred percent of the ownership interest; or the lessee under a ground lease from the PHA. The owner entity may be a partnership that includes the PHA. Participating party. Any person, firm, corporation, or public or private entity that: (1) Agrees to provide financial or other resources to carry out the approved proposal, or specified activities contained in the proposal; or (2) Otherwise participates in the development and/or operation of the public housing units and will receive funds derived from HUD with respect to such
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activities to be undertaken by each of the participating parties and the PHA, and the legal and business relationships between the PHA and each of the participating parties. (b) Financing. A detailed description of all financing (including public housing development funds) necessary for the implementation of the proposal, specifying the sources (with respect to each of the proposed categorical uses of all such financing), together with a tenyear operating pro forma for the development (including all underlying assumptions). In addition, the PHA may be required to submit to HUD, for such review and approval as HUD deems necessary, all documents (including applications for financing) relating to the financing of the proposal, including, but not limited to, any loan agreements, notes, mortgages or deeds of trust, use restrictions, operating pro formas relating to the viability of the development, and other agreements or documents pertaining to the financing of the proposal. (c) Methodology. If the PHA proposes to provide public housing operating subsidy for the public housing units, it must submit a methodology acceptable to HUD for the distribution of a portion of its operating subsidy to such units; (d) Development description. A description of the housing, including the number and type (with bedroom count) of public housing units and, if applicable, the number and type of non-public housing units (with bedroom count) to be developed; schematic drawings and designs of the proposed building and unit plans; outline specifications; and the types and amounts of non-dwelling space to be provided. (e) Site information. An identification and description of the proposed site, site plan, and neighborhood. (f) Market analysis. An analysis of the projected market for the proposed development. (g) Development construction cost estimate. A preliminary development construction cost estimate based on the schematic drawings and outline
participation. The term ``participating {[[Page 391]]} party'' includes an owner entity or partner. Partner. A third party entity with whom the PHA has entered into a partnership or other contractual arrangement to provide for the mixedfinance development of public housing units pursuant to this subpart, and that has primary responsibility with the PHA for the development of the housing units under the terms of the approved proposal. Proposal. For purposes of this subpart only, the term ``proposal'' means a detailed PHA submission of information under SEC. 941.606. Public Housing Agency (PHA). Any State, county, municipality, or other governmental entity or public body (or agency or instrumentality thereof) which is authorized to engage in or assist in the development or operation of low-income housing under this part. For purposes of this subpart, the term ``PHA'' also encompasses any agency or instrumentality of the PHA. Public housing unit. A unit that is eligible to receive operating subsidy pursuant to section 9 of the Act (42 U.S.C. 1437g).
Sec. 941.606 Proposal.
Each proposal shall be prepared in the form prescribed by HUD and shall include some or all of the following documentation, as deemed necessary by HUD. In determining the amount of information to be submitted by the PHA under this section, HUD shall consider whether the documentation is required for HUD to carry out mandatory statutory or executive order reviews, the quality of the PHA's past performance in implementing development projects under this part, and the PHA's demonstrated administrative capability, as demonstrated by its overall score on the PHMAP. The proposal includes: (a) Activities; relationship of participating parties. An identification of the participating parties and a description of the
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specifications and current construction costs prevailing in the area. In addition, a copy of the PHA development schedule, including the architect or contractor estimate of the time required to complete each major development stage. (h) Facilities. A statement addressing the adequacy of existing or proposed facilities and services for the prospective occupants of the development. {[[Page 392]]} (i) Relocation. Information concerning any displacement of site occupants, including identification of each displacee, the distribution plan for notices, and the anticipated cost and source of funding for relocation benefits. (j) Operating feasibility. A demonstration of the operating feasibility of the development, which shall be accomplished by the PHA's showing that the estimated operating expenses of the development will not exceed its estimated operating income. (k) Life cycle analysis. For new construction and substantial rehabilitation, the criteria to be used in equipping the proposed development with heating and cooling systems, which shall include a lifecycle cost analysis of the installation, maintenance and operating costs of such systems pursuant to section 13 of the Act (42 U.S.C. 1437k). (l) Section 213 clearance. To expedite processing of the proposal, a PHA may solicit, on behalf of HUD, comments under section 213 (24 CFR part 791, subpart C) from the chief executive officer (CEO) (or his or her designee) of the unit of general local government. In such case, the solicitation letter must state that comments should be sent directly to HUD within 30 calendar days of HUD's estimated date of receipt of the PHA's proposal. The local government's response must state that the comments are to be considered its only response under 24 CFR part 791, subpart C. A copy of the solicitation letter must be included in the PHA's proposal. (m) New construction. If a proposal involves new construction, the PHA must
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comply with section 6(h) of the Act (42 U.S.C. 1437d). This may be accomplished by the PHA's submission of a comparison of the cost of new construction in the neighborhood where the housing is proposed to be constructed and the cost of acquisition of existing housing (with or without rehabilitation) in the same neighborhood (including estimated costs of lead-based paint activities). Alternatively, the PHA may submit a certification, accompanied by supporting documentation, that there is insufficient existing housing in the neighborhood to develop public housing through acquisition. (n)(1) Certifications and assurances. The PHA shall submit, as part of its proposal, certifications and assurances warranting that it: (i) Has the legal authority under State and local law to develop public housing units through the establishment or selection of an owner entity, and to enter into all agreements and provide all assurances required under this subpart. In addition, the PHA shall warrant that it has the legal authority necessary to enter into any proposed partnership and to fulfill its obligations as a partner thereunder, and that it has obtained all necessary approvals for this purpose; (ii) Will use an open and competitive process to select the partner and/or the owner entity and shall ensure that there is no conflict of interest involved in the PHA's selection of the partner and/or owner entity to develop and operate the proposed public housing units. In addition, the PHA shall ensure that: (A) Any selected partner and/or owner entity complies with all applicable State and local procurement and conflict of interest requirements with respect to its selection of entities to assist in the development, and uses a competitive process consistent with the requirements set forth in this subpart; and (B) If the partner and/or owner entity (or any other entity with an identity of interests with such parties) wants to serve as the general contractor for the project or
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deficiencies in the proposal and indicate that additional information will be accepted if it is received by a specified date. (b) Technical processing. Upon determining that a proposal is acceptable for technical processing, HUD will evaluate the proposal to determine: (1) Whether the PHA has the legal authority necessary to develop public housing units through the establishment of an owner entity and the use of mixedfinance strategies in accordance with this subpart; (2) Whether the proposed sources and uses of funds set forth in the proposal are eligible and reasonable, and whether HUD's preliminary assessment of the financing and other documentation establishes to HUD's satisfaction that the mixed-finance development is viable and is structured so as to adequately protect the Federal investment of funds in the development. For this purpose, HUD will consider (among other factors) the PHA's proposed methodology for allocating operating subsidies on behalf of the public housing units; the projected revenues to be generated by any non-public housing units in a mixed-finance development; and the l0-year operating pro forma and other information contained in the proposal; (3) If applicable, whether the public housing units in the proposed development will be comparable in size, location, external appearance and distribution within the development to the non-public housing units; (4) If public housing development funds are to be used to pay for more than the pro rata cost of common area improvements, whether the proposal ensures that: (i) On a per unit basis (taking into consideration the number of public housing units for which funds have been reserved) the PHA will not exceed TDC limits; and (ii) Any common area improvements will benefit all residents of the development; (5) Whether the proposal complies with all program requirements including, if applicable, any comments received from the unit of general local government pursuant to
development, it may award itself the construction contract only if it can demonstrate to HUD's satisfaction that its bid is the lowest bid submitted in response to a public request for bids; (iii) Will be responsible to HUD for ensuring that the public housing units are developed and operated in accordance with all applicable public housing requirements, including the ACC, and all pertinent statutory, regulatory, and executive order requirements, as those requirements may be amended from time to time. The PHA must also warrant that it will provide for a mechanism to assure, to HUD's satisfaction, {[[Page 393]]} that the public housing units will remain available for use by lowincome families for the maximum period required by law. In addition, the PHA must warrant that any agreement providing for the management of the public housing units by an entity other than the PHA shall require that the units be operated in accordance with all applicable requirements under this subpart for the full term of any low-income use restrictions. (2) The PHA shall submit a certification of previous participation in accordance with procedures set forth in 24 CFR part 200, subpart H, and shall ensure that a similar certification is submitted to HUD by the participating parties. [61 FR 19714, May 2, 1996, as amended at 64 FR 50228, Sept. 15, 1999] Effective Date Note: At 61 FR 19715, May 2, 1996, SEC. 941.606 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.
Sec. 941.608 Technical processing and approval.
(a) Initial screening. HUD shall perform an initial screening to determine that all documentation required as part of the proposal under SEC. 941.606 has been submitted. HUD will advise the PHA of any
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section 213 of the Housing and Community Development Act of 1974 (42 U.S.C. 1439) (see 24 CFR part 791, subpart C); and (6) Whether the proposal is approvable following completion by HUD of an environmental review in accordance with the requirements of 24 CFR part 50. (c) Proposal approval. HUD shall send a notification letter to the PHA stating that the proposal has been approved or disapproved. For approved proposals, the letter shall indicate the approved total development cost of the public housing units in the development. HUD will also send to the PHA for execution an ACC amendment and/or a grant agreement. If the PHA has already executed a front-end ACC amendment, HUD will send to the PHA for execution a special ACC amendment for the mixed-finance development (and/or a grant agreement). The PHA shall execute these documents and return them to HUD for execution. {[[Page 394]]}
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Sec. 941.610 Evidentiary materials and other documents.
(a) Submission of documents. As a condition of the release of grant funds under SEC. 941.612, the PHA shall submit to HUD, within the timeframe prescribed by HUD, evidentiary materials and other documentation, as more fully set forth in the special mixed-finance amendment to the ACC (and/or grant agreement). Such materials and documentation shall include, but shall not be limited to: (1) A copy of executed developmentrelated contracts entered into by the PHA or owner entity with respect to the development, and the PHAexecuted ACC amendment or special mixed-finance amendment to the ACC (and/or grant agreement); (2) Agreements that are necessary to implement the proposal and to ensure that all requirements of this subpart are satisfied. Such agreements must be submitted to HUD for review and approval and shall include, but shall not be limited to:
(i) A deed restriction, covenant running with the land, ground lease, or other arrangement of public record, that will assure to HUD's satisfaction that the public housing units will be available for use by eligible low-income families in accordance with all applicable public housing requirements for the maximum period required by law; (ii) A regulatory or operating agreement between the PHA and the owner entity that provides binding assurances that the operation of the public housing units will be in accordance with all applicable public housing requirements; (iii) An agreement between the PHA and the owner entity with respect to the provision of operating subsidy by the PHA in accordance with this subpart; (iv) A partnership agreement, development agreement, or other agreement entered into between the PHA and its partner, or any other participating party, that establishes the relationships between the parties with respect to the implementation of the proposal, including all rights and liabilities (financial and otherwise) of the parties, a development schedule, and the respective commitments of the parties with respect to the development of the public housing units. For developments involving public and non-public housing units only, the PHA shall also provide for an allocation with the owner entity of expenses and risks (e.g., fire, exhaustion of, or failure to receive, syndication funds, etc.) associated with the development and operation of the development. The allocation of expenses and risks shall be based upon a ratio that reflects the proposed bedroom mix of the public housing units as compared to the bedroom mix and unit count of the nonpublic housing units in the development, or as otherwise approved by HUD; (v) Any agreement relating to the management of the public housing units by an entity other than the PHA; (vi) For developments consisting of public housing and non-public housing units, and in lieu of the standard cooperation agreement required under SEC. 941.201(c),
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ensure the availability of the public housing units for low-income persons for the maximum permissible period; (6) Evidence of control of the site by the PHA, partner, or owner entity following proposal submission, for such period of time as may be required by HUD; (7) Evidence that construction or rehabilitation is permitted by current zoning ordinances or regulations, or evidence to indicate that needed rezoning is likely and will not delay construction of the development; (8) In addition, the PHA shall submit the following certifications warranting that: (i) For PHAs receiving operating assistance, that: (A) There shall be no disposition of the public housing units without the prior written approval of HUD during and for ten years after the end of the period in which the public housing units receiving operating subsidy from the PHA; and (B) During a 40-year period (which may be extended for 10 years after the end of the period in which the public housing units receive operating subsidy from the PHA, or as may be otherwise required by law), the public housing units shall be maintained and operated in accordance with all applicable public housing requirements (including the ACC), as those requirements may be amended from time to time; (ii) The PHA will develop at least the same number of public housing units as were approved by HUD as part of the PHA's proposal. Where the PHA proposes to pay for more than its pro rata share of the cost of common area improvements, the PHA must also certify that: (A) It will develop the same number of public housing units as were approved by HUD as part of the PHA's proposal, and will do so within the TDC limits; and (B) The common area improvements will benefit all residents of the development. If the PHA's proposal provides that public housing units within a development will not be specifically designated as public housing units, but shall instead constitute a fixed percentage of the housing units and number
the PHA shall submit a cooperation agreement with the applicable locality concerning PILOT payments, local tax exemption and local government services on behalf of the proposed public housing units. Such payments, exemption and services must be based upon a ratio reflecting the proposed bedroom mix of the public housing units as compared to the bedroom mix of the non-public housing units in the development, or as otherwise approved by HUD. For developments consisting only of public housing units, the PHA shall submit the standard cooperation agreement required under SEC. 941.201(c); (3) All private or public financing documents evidencing the availability of the participating party(ies)'s financing, the amount and source of financing committed to the proposal by the participating party(ies), and the irrevocability of those funds. HUD may require in lieu of, or in addition to the submission of these documents, an opinion of the PHA's and the owner entity's counsel (or other party designated by HUD) attesting that counsel has examined the availability of the participating party(ies)'s financing, and the amount and source of financing {[[Page 395]]} committed to the proposal by the participating party(ies), and has determined that such financing has been irrevocably committed by the participating party(ies) for use in carrying out the proposal, and that such commitment is in the amount required under the terms of the proposal; (4) The organizational documents of the owner entity, which shall be reviewed by HUD (together with all financing documents) to ensure that they do not provide equity investors, creditors, and any other parties, with rights that would be inconsistent with, or that could interfere with, HUD's interest in the proposed development; (5) Evidence that all necessary actions have been taken by the PHA and other participating parties to confer such legally enforceable rights as will enable HUD to protect its investment in the property and to
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of bedrooms developed under the proposal, the PHA must provide additional binding assurances that the percentage of public housing units and number of bedrooms, as approved by HUD, will be maintained as public housing by the owner entity, and that all of the requirements of this subpart will be satisfied with respect to those units; (iii) It will ensure that the requirements of this subpart are binding upon the owner entity and any partner of the PHA and, to the extent determined necessary by HUD, upon any other participating party. In addition, in the event of any noncompliance with the requirements of this subpart by any participating party, the PHA agrees to take all necessary enforcement action to ensure such compliance or, alternatively, to pursue any legal or equitable remedies that HUD deems appropriate; (iv) It will include in all agreements or contracts with the partner, owner entity, or any other participating parties receiving development funds under this subpart, an acknowledgement that a transfer of the development funds by the PHA to the partner, the owner entity, or other participating party, shall not be deemed to be an assignment of development grant funds and that, accordingly, the partner, the owner entity or other participating party shall {[[Page 396]]} not succeed to any rights to benefits of the PHA under the ACC, or ACC amendment, nor shall it attain any privileges, authorities, interests, or rights in or under the ACC or ACC amendment; (v) It will include, or cause to be included, in all its agreements or contracts with the partner, the owner entity, or other participating parties, and in all contracts with any other party involving the use of development grant funds under this subpart, a provision stating that nothing in the ACC or ACC amendments providing such funds, nor any agreement or contract between the party(ies) shall be deemed to create a relationship of third-party beneficiary, principal and agent, limited or general partnership, joint venture, or any association or relationship involving HUD;
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(vi) It will ensure that the development of the public housing units will be in compliance with labor standards applicable to the development of public housing including, but not limited to, wage rates under the Davis-Bacon Act (40 U.S.C. 276a et seq.). If the proposed development will include public housing units that are not specifically designated units, the PHA shall ensure that such labor requirements are met with respect to the development of all units that may, at any time, be used as the public housing units; (vii) It will take all steps necessary to ensure that, in the event of a foreclosure or other adverse action brought against the owner entity with respect to the housing units (including, but not limited to, the public housing units), the operation of the public housing units developed under this subpart shall not be adversely affected. (9) Such additional documentation as may be required by HUD. (b) Subsidy layering analysis. After the PHA submits the documentation required under paragraph (a) of this section, HUD (or its designee) shall carry out a subsidy layering analysis pursuant to section 102(d) of the Department of Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3545) (see 24 CFR part 4) to determine whether the amount of assistance being provided for the development is more than necessary to make the assisted activity feasible after taking into account the other governmental assistance. Effective Date Note: At 61 FR 19716, May 2, 1996, SEC. 941.610 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.
Sec. 941.612 Disbursement of grant funds.
(a) Front-end drawdowns. A PHA may request front-end assistance for both scattered or non-scattered site development
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ratio to other public and private funds, in accordance with a draw schedule prepared by the PHA and approved by HUD. The PHA and its partner shall certify, in a form prescribed by HUD, prior to the initial drawdown of public housing development funds that the PHA will not draw down and the partner will not request more public housing grant funds than necessary to meet the PHA's pro rata share of the development costs. The PHA shall draw down public housing development funds only when payment is due and after inspection and acceptance of work covered by the draw. The PHA shall release funds to its partner promptly, normally within two working days of receipt of the funds from HUD, and only in accordance with the ratio approved by HUD. The PHA's partner shall take prompt action to distribute the funds, normally within two working days of receipt of the funds from the PHA; (2) Each drawdown of public housing development funds constitutes a certification by the PHA that: (i) All the representations and warranties of the PHA, as submitted in accordance with this subpart, continue to be valid, true, and in full force and effect; (ii) The PHA is in full compliance with all of the PHA's obligations pursuant to this part which, by their terms, are applicable at the time of the drawdown of the public housing development funds, and that to the best of the PHA's knowledge, it is not in default under the ACC, as amended; (iii) All conditions precedent to the PHA's authority to draw down the public housing grant funds have been satisfied; (iv) The public housing grant funds to be drawn down will be used for eligible costs actually incurred or to be incurred in accordance with the provisions of this subpart and the approved proposal; and (v) The ratio for the draw down of funds is satisfied. (c) The standard drawdown requirements set forth in paragraph (b) of this section (including the requirement that public housing development funds must be drawn down in an approved ratio to other
in accordance with the following requirements: (1) Front-end assistance may be used to pay for materials and services related to proposal development, and may also be used to pay for costs related to the demolition of existing units on a proposed site or for preliminary development work; (2) HUD shall determine on a case-bycase basis the maximum amount that may be drawn down by a PHA to pay for preliminary development costs, based upon a consideration of the nature and scope of activities proposed to be carried out by the PHA; (3) Before a request for front-end assistance may be approved, the PHA must provide HUD with such information and documentation as HUD deems appropriate from the list set forth at SEC. 941.606. In determining the extent of the PHA's submissions under this paragraph (a), HUD shall ensure that it has adequate information or documentation to enable it to carry out any statutory, executive order, or other mandatory upfront reviews under this subpart. These reviews shall include, but shall not be limited to, environmental reviews (including NEPA and historic preservation), intergovernmental review, section 213 clearance (24 CFR part 791, subpart C), and subsidy layering. If, upon completing these reviews, HUD determines that the proposed development is approvable, it may execute with the PHA a front-end ACC amendment and the special mixed-finance amendment to the ACC (and/or grant agreement) to provide advances for the purposes, and in the amounts, approved by HUD. (b) Standard drawdown requirements. HUD will review the evidentiary materials and other documents submitted {[[Page 397]]} pursuant to SEC. 941.610, and, upon determining that such documents are satisfactory, may approve a drawdown of development funds, consistent with the following requirements: (1) A PHA may only draw down public housing development funds in an approved
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public and private funds) do not apply to front-end assistance approved by HUD pursuant to paragraph (a) of this section.
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Sec. 941.614 HUD monitoring and review.
HUD shall monitor and review the implementation of the PHA's approved proposal in accordance with requirements prescribed by HUD in a special mixedfinance amendment to the ACC (and/or grant agreement).
24 CFR 943 Public Housing Agency Consortia And Joint Ventures
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 397-402] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 943_PUBLIC HOUSING AGENCY CONSORTIA AND JOINT VENTURES Subpart A_General 943.100 What is the purpose of this part? Subpart B_Consortia 943.115 What programs are covered under this subpart? 943.118 What is a consortium? 943.120 What programs of a PHA are included in a consortium's functions? 943.122 How is a consortium organized? 943.124 What elements must a consortium agreement contain? 943.126 What is the relationship between HUD and a consortium? 943.128 How does a consortium carry out planning and reporting functions? 943.130 What are the responsibilities of participating PHAs? {[[Page 398]]} Subpart C_Subsidiaries, Affiliates, Joint Ventures in Public Housing 943.140 What programs and activities are covered by this subpart?
Sec. 941.616 Sanctions.
In the event the public housing units that are proposed to be developed under this subpart are not developed in accordance with the projected development schedule, the approved proposal, and all applicable Federal requirements, or if the units are not operated in accordance with applicable requirements, HUD may impose sanctions on the PHA, and/or seek legal and equitable relief, in accordance with requirements prescribed by HUD in the special mixedfinance amendment to the ACC (and/or grant agreement).
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943.142 In what types of operating organizations may a PHA participate? 943.144 What financial impact do operations of a subsidiary, affiliate, or joint venture have on a PHA? 943.146 What impact does the use of a subsidiary, affiliate, or joint venture have on financial accountability to HUD and the Federal government? 943.148 What procurement standards apply to PHAs selecting partners for a joint venture? 943.150 What procurement standards apply to a PHA's joint venture partner? 943.151 What procurement standards apply to a joint venture itself? Authority: 42 U.S.C. 1437k and 3535(d). Source: 65 FR 71207, Nov. 29, 2000, unless otherwise noted.
Subpart B_Consortia
Sec. 943.115 What programs are covered under this subpart?
(a) Except as provided in paragraph (b) of this section, this subpart applies to the following: (1) PHA administration of public housing or Section 8 programs under an Annual Contributions Contract (ACC) with HUD; and (2) PHA administration of grants to the PHA in connection with its public housing or Section 8 programs. (b) This subpart does not apply to the following: (1) PHA administration of Section 8 projects assigned to a PHA for contract administration pursuant to an ACC entered under the Request for Proposals (RFP) published May 19, 1999 (64 FR 27358); (2) Section 8 contract administration of a restructured subsidized multifamily project by a Participating Administrative Entity in accordance with part 401 of this title; or (3) A PHA in its capacity as owner of a Section 8 project.
Subpart A_General
Sec. 943.100 What is the purpose of this part?
This part authorizes public housing agencies (PHAs) to form consortia, joint ventures, affiliates, subsidiaries, partnerships, and other business arrangements under section 13 of the United States Housing Act of 1937 (42 U.S.C. 1437k). Under this authority, PHAs participating in a consortium enter into a consortium agreement, submit joint PHA Plans to HUD, and may combine all or part of their funding and program administration. This part does not preclude a PHA from entering cooperative arrangements to operate its programs under other authority, as long as they are consistent with other program regulations and requirements.
Sec. 943.118 What is a consortium?
A consortium consists of two or more PHAs that join together to perform planning, reporting, and other administrative or management functions for participating PHAs, as specified in a consortium agreement. A consortium also submits a joint PHA Plan. The lead agency collects the assistance funds from HUD that would be paid to the participating PHAs for the elements of their operations that are administered by the consortium and allocates them according to the consortium agreement. The participating PHAs must adopt the same fiscal year so that the applicable periods for submission and review of the joint PHA Plan are the same. Notwithstanding any other regulation, PHAs proposing to form consortia may request and
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HUD may approve changes in PHA fiscal years to make this possible.
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Sec. 943.120 What programs of a PHA are included in a consortium's functions?
(a) A PHA may enter a consortium under this subpart for administration of any of the following program categories: (1) The PHA's public housing program (which may include either the operating fund or the capital fund, or both); (2) The PHA's Section 8 voucher and certificate program (including the projectbased certificate and voucher programs and special housing types); {[[Page 399]]} (3) The PHA's Section 8 Moderate Rehabilitation program, including Single Room Occupancy program; (4) All other project-based Section 8 programs administered by the PHA under an ACC with HUD; and (5) Any grant programs of the PHA in connection with its Section 8 or public housing programs, such as the Drug Elimination program or the Resident Opportunities and Self-Sufficiency program, to the extent not inconsistent with the terms of the governing documents for the grant program's funding source. (b) If a PHA elects to enter a consortium with respect to a category specified in paragraph (a) of this section, the consortium must cover the PHA's whole program under the ACC with HUD for that category, including all dwelling units and all funding for that program under the ACC with HUD.
(see SEC. 943.126) to provide that HUD funding to the participating PHAs for program categories covered by the consortium will be paid to the lead agency. (b) The lead agency must not be a PHA that is designated as a ``troubled PHA'' by HUD, that has been determined by HUD to fail the civil rights compliance threshold for new funding, or that has had a PHAS designation withheld for civil rights or other reasons. The lead agency is designated to receive HUD program payments on behalf of participating PHAs, to administer HUD requirements for administration of the funds, and to apply the funds in accordance with the consortium agreement and HUD regulations and requirements.
Sec. 943.124 What elements must a consortium agreement contain?
(a) The consortium agreement among the participating PHAs governs the formation and operation of the consortium. The consortium agreement must be consistent with any payment agreements between the participating PHAs and HUD and must specify the following: (1) The names of the participating PHAs and the program categories each PHA is including under the consortium agreement; (2) The name of the lead agency; (3) The functions to be performed by the lead agency and the other participating PHAs during the term of the consortium; (4) The allocation of funds among participating PHAs and responsibility for administration of funds paid to the consortium; and (5) The period of existence of the consortium and the terms under which a PHA may join or withdraw from the consortium before the end of that period. To provide for orderly transition, addition or withdrawal of a PHA and termination of the consortium must take effect on the anniversary of the consortium's fiscal year. (b) The agreement must acknowledge that the participating PHAs are subject to the
Sec. 943.122 How is a consortium organized?
(a) PHAs that elect to form a consortium enter into a consortium agreement among the participating PHAs, specifying a lead agency (see SEC. 943.124), and submit a joint PHA Plan (SEC. 943.118). HUD enters into any necessary payment agreements with the lead agency and the other participating PHAs
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joint PHA Plan submitted by the lead agency. (c) The agreement must be signed by an authorized representative of each participating PHA.
Sec. 943.130 What are the responsibilities of participating PHAs?
(a) Responsibilities, generally. Despite participation in a consortium, each participating PHA remains responsible for its own obligations under its ACC with HUD. This means that the PHA has an obligation to assure that all program funds, including funds paid to the lead agency for administration by the consortium, are used in accordance with HUD regulations and requirements, and that the PHA program is administered in accordance with HUD regulations and requirements. Any breach of program requirements with respect to a program covered by the consortium agreement is a breach of the ACC with each of the participating PHAs, so each PHA is responsible for the performance of the consortium. (b) Applicability of independent audit and performance assessment system requirements to consortia. Where the lead agency will manage substantially all program and activities of the consortium, HUD interprets financial accountability to rest with the consortium and thus HUD will apply independent audit and performance assessment requirements on a consortiumwide basis. Where the lead agency will not manage substantially all programs and activities of a consortium, the consortium shall indicate in its PHA Plan submission which PHAs have financial accountability for the programs. The determination of financial accountability shall be made in accordance with generally accepted accounting principles, as determined in consultation with an independent public accountant. In such situations, HUD will apply independent audit and performance assessment requirements consistent with that determination. With respect to any consortium, however, HUD may determine (based on a request from the consortium or other circumstances) to apply independent audit and performance requirements on a different basis where this would promote sound management.
Sec. 943.126 What is the relationship between HUD and a consortium?
HUD has a direct relationship with the consortium through the PHA Plan process and through one or more payment agreements, executed in a form prescribed by HUD, under which HUD and the participating PHAs agree that program funds will be paid to the lead agency on behalf of the participating PHAs. Such funds must be used in accordance with the consortium agreement, the joint PHA Plan and HUD regulations and requirements.
Sec. 943.128 How does a consortium carry out planning and reporting functions?
(a) During the term of the consortium agreement, the consortium must submit joint five-year Plans and joint Annual Plans for all participating PHAs, in accordance with part 903 of {[[Page 400]]} this chapter. HUD may prescribe methods of submission for consortia generally and where the consortium does not cover all program categories. (b) The consortium must maintain records and submit reports to HUD, in accordance with HUD regulations and requirements, for all of the participating PHAs. All PHAs will be bound by Plans and reports submitted to HUD by the consortium for programs covered by the consortium. (c) Each PHA must keep a copy of the consortium agreement on file for inspection. The consortium agreement must also be a supporting document to the joint PHA Plan.
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Subpart C_Subsidiaries, Affiliates, Joint Ventures in Public Housing
Sec. 943.140 What programs and activities are covered by this subpart?
(a) This subpart applies to the provision of a PHA's public housing administrative and management functions, and to the provision (or arranging for the provision) of supportive and social services in connection with public housing. This subpart does not apply to activities of a PHA that are subject to the requirements of part 941, subpart F, of this title. (b) For purposes of this subpart, the term ``joint venture partner'' means a participant (other than a PHA) in a joint venture, partnership, or other business arrangement or contract for services with a PHA. (c) This part does not affect a PHA's authority to use joint ventures, as may be permitted under State law, when using non1937 Act funds.
subsidiary, affiliate, or joint venture have on a PHA?
Income generated by subsidiaries, affiliates, or joint ventures formed under the authority of this subpart is to be used for low-income housing or to benefit the residents assisted by the PHA. This income will not cause a decrease in funding provided under the public housing program, except as otherwise provided under the Operating Fund and Capital Fund formulas.
Sec. 943.146 What impact does the use of a subsidiary, affiliate, or joint venture have on financial accountability to HUD and the Federal government?
None; the subsidiary, affiliate, or joint venture is subject to the same authority of HUD, HUD's Inspector General, and the Comptroller General to audit its conduct.
Sec. 943.148 What procurement standards apply to PHAs selecting partners for a joint venture?
(a) The requirements of part 85 of this title are applicable to this part, subject to paragraph (b) of this section, in connection with the PHA's public housing program. (b) A PHA may use competitive proposal procedures for qualifications-based procurement (request for qualifications or ``RFQ''), or may solicit a proposal from only one source (``sole source'') to select a joint venture partner to perform an administrative or management function of its public housing program or to provide or arrange to provide supportive or social services covered under this part, under the following circumstances: (1) The proposed joint venture partner has under its control and will make available to the partnership substantial, unique and tangible resources or other benefits that would not otherwise be available to the PHA on the open market (e.g., planning expertise, program experience, or financial or other
Sec. 943.142 In what types of operating organizations may a PHA participate?
(a) A PHA may create and operate a wholly owned or controlled subsidiary or other affiliate; may enter into joint ventures, partnerships, or other business arrangements with individuals, organizations, entities, or governmental units. A subsidiary or affiliate may be a nonprofit corporation. A subsidiary or affiliate may be an organization controlled by the same persons who serve on the governing board of the PHA or who are employees of the PHA. (b) The purpose of any of these operating organizations would be to administer programs of the PHA. {[[Page 401]]}
Sec. 943.144 What financial impact do operations of a
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selected bidder's response to a RFP or RFQ (as applicable), without the need for further procurement if: (1) The PHA can demonstrate that its original competitive selection of the partner clearly anticipated the later provision of such goods or services; (2) Compensation of all identity-ofinterest parties is structured to ensure {[[Page 402]]} there is no duplication of profit or expenses; and (3) The PHA can demonstrate that its selection is reasonable based upon prevailing market costs and standards, and that the quality and timeliness of the goods or services is comparable to that available in the open market. For purposes of this paragraph (c), an ``identity-ofinterest party'' means a party that is wholly owned or controlled by, or that is otherwise affiliated with, the partner or the PHA. The PHA may use an independent organization experienced in cost valuation to determine the cost reasonableness of the proposed contracts.
resources). In this case, the PHA must maintain documentation to substantiate both the cost reasonableness of its selection of the proposed partner and the unique qualifications of the partner: or (2) A resident group or a PHA subsidiary is willing and able to act as the PHA's partner in performing administrative and management functions or to provide supportive or social services. This entity must comply with the requirements of part 84 of this title (if the entity is a nonprofit) or part 85 of this title (if the entity is a State or local government) with respect to its selection of the members of the team and the members must be paid on a costreimbursement basis only. The PHA must maintain documentation that indicates both the cost reasonableness of its selection of a resident group or PHA subsidiary and the ability of that group or subsidiary to act as the PHA's partner under this provision.
Sec. 943.150 What procurement standards apply to a PHA's joint venture partner?
(a) General. A joint venture partner is not a grantee or subgrantee and, accordingly, is not required to comply with part 84 or part 85 of this title in its procurement of goods and services under this part. The partner must comply with all applicable State and local procurement and conflict of interest requirements with respect to its selection of entities to assist in PHA program administration. (b) Exception. If the joint venture partner is a subsidiary, affiliate, or identity of interest party of the PHA, it is subject to the requirements of part 85 of this title. HUD may, on a case-by-case basis, exempt such a joint venture partner from the need to comply with requirements under part 85 of this title if HUD determines that the joint venture has developed an acceptable alternative procurement plan. (c) Contracting with identity-of-interest parties. A joint venture partner may contract with an identity-of-interest party for goods or services, or a party specified in the
Sec. 943.151 What procurement standards apply to a joint venture itself?
(a) When the joint venture as a whole is controlled by the PHA or an identity of interest party of the PHA, the joint venture is subject to the requirements of part 85 of this title. (b) If a joint venture is not controlled by the PHA or an identity of interest party of the PHA, then the rules that apply to the other partners apply. See SEC. 943.150.
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Subpart A_General
Sec. 945.101 Purpose.
24 CFR 945 Designated Public Housing Disabled, Elderly
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 402-411] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 945_DESIGNATED HOUSING_PUBLIC HOUSING DESIGNATED FOR OCCUPANCY BY DISABLED, ELDERLY, OR DISABLED AND ELDERLY FAMILIES Subpart A_General 945.101 Purpose. 945.103 General policies. 945.105 Definitions. Subpart B_Application and Approval Procedures 945.201 Approval to designate housing. 945.203 Allocation plan. 945.205 Designated housing for disabled families. Subpart C_Operating Designated Housing 945.301 General requirements. 945.303 Requirements governing occupancy in designated housing. Authority: 42 U.S.C. 1473e and 3535(d). Source: 59 FR 17662, Apr. 13, 1994, unless otherwise noted.
The purpose of this part is to provide for designated housing as authorized by section 7 of the U.S. Housing Act of 1937 (42 U.S.C. 1437e). Section 7 provides public housing agencies with the option, subject to the requirements and procedures of this part, to designate public housing projects, or portions of public housing projects, for occupancy by disabled families, elderly families, or mixed populations of disabled families and elderly families.
Sec. 945.103 General policies.
(a) Agency participation. Participation in this program is limited to public housing agencies (PHAs) (as this term is defined in 24 CFR 913.102) that elect to designate public housing projects for occupancy by disabled families, elderly families, or disabled families and elderly families, as provided by this part. (b) Eligible housing--(1) Designation of public housing. Projects eligible for designation under this part are public housing projects as described in the definition of ``project'' in SEC. 945.105. (2) Additional housing resources. To meet the housing and supportive service needs of elderly families, and disabled families, including nonelderly disabled families, who will not be housed in a designated project, PHAs shall utilize housing resources that they own, control, or have received preliminary notification that they will obtain (e.g., section 8 certificates and vouchers). They also may utilize housing resources for which they plan to apply during the period covered by the allocation plan, and that they have a reasonable expectation of obtaining. PHAs also may utilize, to the extent practicable, any housing facilities that they own or control in which supportive services are already provided, facilitated or coordinated, such as mixed housing, shared housing, family housing, group homes, and congregate housing.
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(e. g., elderly family in a project designated for elderly families). Designated housing or designated project means a project (or projects), or a portion of a project (or projects) (as these terms are defined in this section), that has been designated in accordance with the requirements of this part. Disabled family means a family whose head or spouse or sole member is a person with disabilities. The term ``disabled family'' may include two or more persons with disabilities living together, and one or more persons with disabilities living with one or more persons who are determined to be essential to the care or well-being of the person or persons with disabilities. A disabled family may include persons with disabilities who are elderly. Elderly family means a family whose head, spouse, or sole member is an elderly person. The term ``elderly family'' includes an elderly person, two or more elderly persons living together, and one or more elderly persons living with one or more persons who are determined to be essential to the care or well-being of the elderly person or persons. An elderly family may include elderly persons with disabilities and other family members who are not elderly. Family includes but is not limited to a single person as defined in this part, a displaced person (as defined in 24 CFR part 912), a remaining member of a tenant family, a disabled family, an elderly family, a near-elderly family, and a family with children. It also includes an elderly family or a disabled family composed of one or more elderly persons living with one or more disabled persons. Housing has the same meaning as ``project,'' which is defined in this section. Mixed population project means a public housing project reserved for elderly families and disabled families. This is the project type referred to in NAHA as being designated for elderly and disabled families. A PHA that has a mixed population project or intends to develop one need not submit an allocation plan or request a designation.
(3) Exemption of mixed population projects. A PHA with a public housing project with a mixed population of elderly families and disabled families that plans to house them in such {[[Page 403]]} project in accordance with the requirements of 24 CFR part 960, subpart D, is not required to meet the designation requirements of this part. (c) Family Participation in designated housing--(1) Voluntary participation. The election to reside in designated housing is voluntary on the part of a family. No disabled family or elderly family may be required to reside in designated housing, nor shall a decision not to reside in designated housing adversely affect the family with respect to occupancy of another appropriate project. (2) Meeting stated eligibility requirements. Nothing in this part shall be construed to require or permit a PHA to accept for admission to a designated project a disabled family or elderly family who does not meet the stated eligibility requirements for occupancy in the project (for example, income), as set forth in HUD's regulations in 24 CFR parts 912 and 913, and in the PHA's admission policies.
Sec. 945.105 Definitions.
The terms Department, Elderly person, HUD, NAHA, Public Housing Agency (PHA), and Secretary are defined in 24 CFR part 5. Act means the United States Housing Act of 1937 (42 U.S.C. 14371440). Accessible units means units that meet the requirement of accessibility with respect to dwellings as set forth in the second definition of ``accessible'' in 24 CFR 8.3. Allocation plan. See SEC. 945.201. CHAS means the comprehensive housing affordability strategy required by section 105 of the National Affordable Housing Act (42 U.S.C. 12705) or any successor plan prescribed by HUD. Designated family means the category of family for whom the project is designated
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However, the project must meet the requirements of 24 CFR part 960 subpart D. Near-elderly family means a family whose head, spouse, or sole member is a near-elderly person. The term ``near-elderly family'' includes two or more near-elderly persons living together, and one or more near-elderly persons living with one or more persons who are determined to be essential to the care or well-being of the near-elderly person or persons. A near-elderly family may include other family members who are not near-elderly. {[[Page 404]]} Near-elderly person means a person who is at least 50 years of age but below the age of 62, who may be a person with a disability. Non-elderly disabled person means a person with a disability who is less than 62 years of age. Person with disabilities means a person who-(a) Has disability as defined in section 223 of the Social Security Act (42 U.S.C. 423), or (b) Is determined to have a physical, mental, or emotional impairment that-(1) Is expected to be of long-continued and indefinite duration, (2) Substantially impedes his or her ability to live independently, and (3) Is of such a nature that such ability could be improved by more suitable housing conditions, or (c) Has a developmental disability as defined in section 102 of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6001(5)). The term ``person with disabilities'' does not exclude persons who have the disease of acquired immunodeficiency syndrome or any conditions arising from the etiologic agent for acquired immunodeficiency syndrome. Portion of project includes: One or more buildings in a multibuilding project; one or more floors of a project or projects; a certain number of dwelling units in a project or projects. (Designation of a portion of a project does
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not require that the buildings, floors or units be contiguous.) Project means low-income housing developed, acquired, or assisted by a PHA under the U.S. Housing Act of 1937 (other than section 8) for which there is an Annual Contributions Contract (ACC) between HUD and the PHA. For purposes of this part, the terms housing and public housing mean the same as project. Additionally, as used in this part, and unless the context indicates otherwise, the term project when used in the singular includes the plural, and when used in the plural, includes the singular, and also includes a ``portion of a project,'' as defined in this section. Public housing or public housing project. See definition of ``project'' in this section. Service provider means a person or organization qualified and experienced in the provision of supportive services, and that is in compliance with any licensing requirements imposed by State or local law for the type of service or services to be provided. The service provider may provide the service on either a for-profit or not-forprofit basis. Single person means a person who lives alone or intends to live alone, who is not an elderly person, a person with disabilities, a displaced person, or the remaining member of a tenant family. Supportive service plan. See SEC. 945.205. Supportive services means services available to persons residing in a development, requested by disabled families and for which there is a need, and may include, but are not limited to, meal services, healthrelated services, mental health services, services for nonmedical counseling, meals, transportation, personal care, bathing, toileting, housekeeping, chore assistance, safety, group and socialization activities, assistance with medications (in accordance with any applicable State laws), case management, personal emergency response, and other appropriate services.
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(``projects'') and includes a portion of a project. (b) Consultation in plan development. These consultation requirements apply to the development of an initial allocation plan as provided in paragraph (c) of this section, or any update of the allocation plan as provided in paragraph (f) of this section. (1) In preparing the draft plan, the PHA shall consult with: (i) The State or unit of general local government where the project is located; (ii) Public and private service providers; (iii) Representative advocacy groups for each of these family types: disabled families, elderly families, and families with children, where such advocacy groups exist; (iv) Representatives of the residents of the PHA's projects proposed for designation, including representatives from resident councils or resident management corporations where they exist; and (v) Other parties that the PHA determines would be interested in the plan, or other parties that have contacted the PHA and expressed an interest in the plan. (2) Following the completion of the draft plan, the PHA shall: (i) Issue public notices regarding its intention to designate housing and the availability of the draft plan for review; (ii) Contact directly those individuals, agencies and other interested parties specified in paragraph (b)(1) of this section, and advise of the availability of the draft plan for review; (iii) Allow not less than 30 days for public comment on the draft allocation plan; (iv) Make free copies of the draft plan available upon request, and in accessible format, when appropriate; (v) Conduct at least one public meeting on the draft allocation plan; (vi) Give fair consideration to all comments received; and (vii) Retain any records of public meetings held on the allocation plan (or updated plan) and any written comments received on the plan for a period of five years commencing from the date of
[59 FR 17662, Apr. 13, 1994, as amended at 61 FR 5214, Feb. 9, 1996]
Subpart B_Application and Approval Procedures
Sec. 945.201 Approval to designate housing.
(a) Designated housing for elderly families. To designate a project for occupancy by elderly families, a PHA must have a HUD-approved allocation plan that meets the requirements of SEC. 945.203. (b) Designated housing for disabled families. To designate a project for occupancy by disabled families, a PHA must have a HUD-approved allocation plan that meets the requirements of SEC. 945.203, and a HUDapproved supportive service plan that meets the requirements of SEC. 945.205. (c) Designated housing for elderly families and disabled families. (1) A PHA that provides or intends to provide a mixed population project (a project for both elderly families and disabled families) {[[Page 405]]} is not required to meet the requirements of this part. The PHA is required to meet the requirements of 24 CFR part 960, subpart D. (2) A PHA that intends to provide designated housing for elderly families or for disabled families must identify any existing or planned mixed population projects, reserved under 24 CFR part 960, subpart B, as additional housing resources, in its allocation plan, in accordance with SEC. 945.203(c)(6).
Sec. 945.203 Allocation plan.
(a) Applicable terminology. (1) As used in this section, the terms ``initial allocation plan'' refers to the PHA's first submission of an allocation plan, and ``updated allocation plan'' refers to the biennial update (once every two years) of this plan, which is described in paragraph (f) of this section. (2) As provided in SEC. 945.105, the term ``project'' includes the plural
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submission of the allocation plan to HUD. These records must be available for review by HUD. (c) Contents of initial plan. The initial allocation plan shall contain, at a minimum, the information set forth in this paragraph (c). (1) Identification of the project to be designated and type of designation to be made. The PHA must: (i) Identify the type of designation to be made (i.e., housing for disabled families or housing for elderly families); (ii) Identify the building(s), floor(s), or unit(s) to be designated and their location, or if specific units are not designated, the number to be designated; and (iii) State the reasons the building(s), floor(s), or unit(s) were selected for designation. (2) Identification of groups and persons consulted and comments submitted. The PHA must: (i) Identify the groups and persons with whom the PHA has consulted in the development of the allocation plan; (ii) Include a summary of comments received on the plan from the groups and persons consulted; and (iii) Describe how the plan addresses these comments. (3) Profile of proposed designated project in pre-designation state. This component of the plan must include, {[[Page 406]]} for the projects, buildings, or portions of buildings to be designated: (i) The total number of families currently occupying the project, and (A) The number of families who are members of the group for whom the project is to be designated, and (B) The number of families who are not members of the group for whom the project is to be designated; (ii) An estimate of the total number of elderly families and disabled families who are potential tenants of the project (i.e., as the project now exists), based on information provided by:
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(A) The waiting list from which vacancies in the project are filled; and (B) A local housing needs survey, if available, such as the CHAS, for the jurisdiction within which the area served by the PHA is located; (iii) An estimate of the number of potential tenants who will need accessible units based on information provided by: (A) The needs assessment prepared in accordance with 24 CFR 8.25, and (B) A housing needs survey, if available, such as the CHAS or HUDprescribed successor survey; (iv) The number of units in the project that became vacant and available for occupancy during the year preceding the date of submission of the allocation plan to HUD; (v) The average length of vacancy for dwelling units in the project for the year preceding the date of submission of the allocation plan to HUD; (vi) An estimate of the number of units in the project that the PHA expects to become vacant and available for occupancy during the two-year period following the date of submission of the allocation plan to HUD (i.e., if the project were not to be designated); (vii) An estimate of the average length of time elderly families and non-elderly persons with disabilities currently have to wait for a dwelling unit. (4) Projected profile of project in designated state. This component of the plan must: (i) Identify the source of the families for the designated project (e.g., current residents of the project, families currently on the waiting list, residents of other projects, and potential tenants based on information from the local housing needs survey); (ii) For projects proposed to be designated for occupancy by elderly families an estimate of the number of: (A) Units in the project that are anticipated to become vacant and available for occupancy during the two-year period following the date of submission of the allocation plan to HUD;
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project for elderly families, the PHA must provide the same level of services, upon the request of non-elderly disabled families. (iv) If a project is being designated for elderly families, identify the additional housing resources that the PHA determines will be sufficient to provide assistance to not less than the number of nonelderly disabled families that would have been housed by the PHA if occupancy in units in the designated project were not restricted to elderly families (one-for-one replacement is not required). Among these resources may be: (A) Normal turnover in existing projects; (B) Existing housing stock that previously was not available to or considered for non-elderly disabled families. Examples are dwellings in general occupancy (family) projects that are reconfigured to meet the dwelling size needs of the non-elderly disabled families, or were previously occupied by elderly families who will relocate to the designated project for elderly families, or were previously vacant because there had not been a demand for dwellings of that size in that location; (C) Housing for which the PHA has received preliminary notification that it will obtain; and (D) Housing for which the PHA plans to apply during the period covered by the allocation plan, and which it has a reasonable expectation of obtaining. (v) Where a project is being designated for elderly families, explain how the PHA plans to secure the required additional housing resources. In the case of housing for which the PHA plans to apply, the PHA must provide sufficient information about the housing resource and its application to establish that the PHA can reasonably expect to obtain the housing. (vi) Describe incentives, if any, that the PHA intends to offer to: (A) Families who are members of the group for whom a project was designated to achieve voluntary transfers to the designated project; and
(B) Near-elderly families who may be needed to fill units in the designated project for elderly families, as provided in SEC. 945.303(c); (iii) Describe any impact the designation may have on the average length of time applicants in the group for which the project is designated and other applicants will have to wait for a dwelling unit. (5) PHA occupancy policies and procedures. This component of the plan must describe any changes the PHA intends to make in its admission policies to accommodate the designation, including: (i) How the waiting list will be maintained; (ii) How dwelling units will be assigned; and (iii) How records will be maintained to document the effect on all families who would have resided in the designated project if it had not been designated. (6) Strategy for addressing the current and future housing needs of the families in the PHA's jurisdiction. The PHA must: (i) Identify the housing resources currently owned or controlled by the PHA, including any mixed population projects, in existence, as provided in 24 CFR part 960, subpart D, that will be available to these families; (ii) Describe the steps to be taken by the PHA to respond to any need for accessible units that will no longer be available for applicants who need them. The PHA has a continuing obligation under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) to provide accessible dwellings even if the project designation removes accessible dwellings from the inventory of possible dwellings for nonelderly persons with disabilities; (iii) If a project is being designated for elderly families, describe the steps the PHA will take to facilitate access {[[Page 407]]} to supportive services by non-elderly disabled families. The services should be equivalent to those available in the designated project and requested by nonelderly disabled families. If the PHA funds supportive services for the designated
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(B) Families who are not members of the group for whom a project was designated to achieve voluntary transfers from the project proposed to be designated; (d) Criteria for allocation plan approval. HUD shall approve an initial allocation plan, or updated allocation plan, if HUD determines that: (1) The information contained in the plan is complete and accurate (a plan that is incomplete, i.e., missing required statements or items, will be disapproved), and the projections are reasonable; (2) Implementation of the plan will not result in a substantial increase in the vacancy rates in the designated project; (3) Implementation of the plan will not result in a substantial increase in delaying or denying housing assistance to families on the PHA's waiting list because of designating projects; (4) The plan for securing sufficient additional housing resources for non-elderly disabled persons can reasonably be achieved; and (5) The plan conforms to the requirements of this part. (e) Allocation plan approval or disapproval.--(1) Written notification. HUD shall notify each PHA, in writing, of approval or disapproval of the initial or updated allocation plan. (2) Timing of notification. An allocation plan shall be considered to be approved by HUD if HUD fails to provide the PHA with notification of approval or disapproval of the plan, as required by paragraph (e)(1) of this section, within: (i) 90 days after the date of submission of an allocation plan that contains comments, as provided in paragraph (c)(2) of this section; or (ii) 45 days after the date of submission of all other plans, including (A) Initial plans for which no comments were received; (B) Updated plans, as provided in paragraph (f) of this section; and (C) Revised initial plans or revised updated plans, as provided in paragraph (e)(4) of this section.
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(3) Approval limited solely to approval of designated housing. HUD's approval {[[Page 408]]} of an initial plan or updated allocation plan under this section may not be construed to constitute approval of any request for assistance for major reconstruction of obsolete projects, assistance for development or acquisition of public housing, or assistance under 24 CFR part 890 (supportive housing for persons with disabilities). (4) Resubmission following disapproval. If HUD disapproves an initial allocation plan, a PHA shall have a period of not less than 45 days or more than 90 days following notification of disapproval as provided in paragraph (e)(2) of this section, to submit amendments to the plan, or to submit a revised plan. (f) Biennial update of plan--(1) General. Each PHA that owns or operates a public housing project that is designated for occupancy under this part shall update its allocation plan not less than once every two years, from the date of HUD approval of the initial allocation plan. A PHA that wishes to amend or revise its plan later than 90 days after HUD disapproval must begin the hearing and consultation process again. (2) Failure to submit updated plan. If the PHA fails to submit the updated plan as required by this paragraph (f), the Secretary may revoke the designation in accordance with the provisions of paragraph (f)(4)(ii) of this section. (3) Contents of updated plan. The updated allocation plan shall contain, at a minimum, the following information: (i) The most recent update of the allocation plan data, and projections for the next two years; (ii) An assessment of the accuracy of the projections contained in previous plans and in the updated allocation plan; (iii) The number of times a vacancy was filled in accordance with SEC. 945.303(c); (iv) A discussion of the impact of the designation on the designated project and the other public housing projects operated
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demand by disabled families for such designation. In the absence of such demonstrated need and demand, PHAs should provide for the housing needs of disabled families in the most integrated setting possible. (2) To designate a project for disabled families, a PHA must submit the allocation plan required by SEC. 945.203 and the supportive service plan described in paragraph (b) of this section. (3) In its allocation plan, {[[Page 409]]} (i) The PHA may not designate a project for persons with a specific disability; (ii) The designated project does not have to be made up of contiguous units. PHAs are encouraged to place the units in the project, whether contiguous or not, in the most integrated setting possible. (4) The consultation process for the allocation plan provided in SEC. 945.203(b) and consultation process for the supportive service plan provided in this section may occur concurrently. (5) If the PHA conducts surveys to determine the need or demand for a designated project for disabled families or for supportive services in such project, the PHA must protect the confidentiality of the survey responses. (b) Supportive Service Plan. The plan shall describe how the PHA will provide or arrange for the provision of the appropriate supportive services requested by the disabled families who will occupy the designated housing and who have expressed a need for these services. (1) Contents of plan. The supportive service plan, at a minimum, must: (i) Identify the number of disabled families who need the supportive services and who have expressed an interest in receiving them; (ii) Describe the types of supportive services that will be provided, and, if known, the length of time the supportive services will be available; (iii) Identify each service provider to be utilized, and describe the experience of the
by the PHA, using the data obtained from the system developed in SEC. 945.203(c), including (A) The number of times there was a substantial increase in delaying housing assistance to families on the PHA's waiting list because projects were designated; and (B) The number of times there was a substantial increase in denying housing assistance to families on the PHA's waiting list because projects were designated; (v) A plan for adjusting the allocation of designated units, if necessary. (4) Criteria for approval of updated plan. (i) HUD shall approve an updated allocation plan based on HUD's review and assessment of the updated plan, using the criteria in (d) of this section. If HUD considers it appropriate, the review and assessment shall include any on-site review and monitoring of PHA performance in the administration of its designated housing and in the allocation of the PHA's housing resources. Notification of approval or disapproval of the updated allocation plan shall be provided in accordance with paragraph (e) of this section; (ii) If a PHA's updated plan is not approved, HUD may require PHAs to change the designation of existing or planned projects to other categories, such as general occupancy or mixed population projects. (5) Notification of approval or disapproval of updated plan. HUD shall notify each PHA submitting an updated plan of approval or disapproval of the updated plan, in accordance with the form of notification and within the time periods required by paragraph (e) of this section. (Approved by the Office of Management and Budget under control number 2577-0192)
Sec. 945.205 Designated housing for disabled families.
(a) General. (1) In general, HUD will approve designated projects for disabled families only if there is a clear demonstration that there is both a need and a
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service provider in delivering supportive services; (iv) Describe how the supportive services will be provided to the disabled families that the designated housing is expected to serve (how the services will be provided depends upon the type of service offered; e.g., if the package includes transportation assistance, how transportation assistance will be provided to disabled families); (v) Identify all sources of funding upon which the PHA is relying to deliver supportive services to residents of the designated housing for disabled families, or the supportive service resources to be provided in lieu of funding; (vi) Submit evidence of a specific contractual commitment or commitments provided to the PHA by the sources identified in paragraph (b)(1)(v) of this section to make funds available for supportive services, or the delivery of supportive services available to the PHA for at least two calendar years; (vii) Identify any public and private service providers, advocates for the interests of designated housing families, and other interested parties with whom the PHA consulted in the development of this supportive service plan, and summarize the comments and recommendations made by these parties. (These comments must be maintained for a period of five years, and be available for review by HUD as provided in paragraph (b)(2)(vii) of this section.); (viii) If applicable, address the need for residential supervision of disabled families (on-site supervision within the designated housing) and how this supervision is to be provided; (ix) Include any other information that the PHA determines would assist HUD in assessing the suitability of the PHA's supportive service plan; and (x) Include any additional information that HUD may request, and which is appropriate to a determination of the suitability of the supportive service plan. (2) Public review and comment on the supportive service plan. In preparing the
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initial supportive service plan, or any update of the supportive service plan, the PHA shall: (i) Issue public notices regarding its intention to provide supportive services to designated housing for disabled families and the availability of the draft supportive service plan; (ii) Send notices directly to interested individuals and agencies that have contacted the PHA and have expressed an interest in the supportive service plan, and to parties specified in paragraph (b)(1)(vii) of this section; (iii) Allow not less than 30 days for public comment on the supportive service plan; (iv) Make free copies of the draft plan available upon request, and in accessible format, when appropriate; (v) Conduct at least one public meeting regarding the supportive service plan; {[[Page 410]]} (vi) Give fair consideration to all comments received; and (vii) Retain any records of the public meetings held on the supportive service plan, and any written comments received on the supportive service plan for a period of five years, from the date of submission of the supportive service plan. These records must be available for review by HUD. (c) Approval. HUD shall approve designated housing for disabled families if the allocation plan meets the requirements of SEC. 945.203, including demonstrating both a need and a demand for designated housing for disabled families, and if HUD determines on the basis of the information provided in the supportive service plan that: (1) There is a sufficient number of persons with disabilities who have expressed an interest in occupying a designated project for disabled families, and who have expressed a need and demand for the supportive services that will be provided; (2) The supportive services are adequately designed to meet the needs of the disabled families who have indicated a desire for them;
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(3) The service provider has current or past experience administering an effective supportive service delivery program for persons with disabilities; (4) If residential supervision is required, a written commitment to provide this supervision in the designated housing. (Approved by the Office of Management and Budget under control number 2577-0192)
Sec. 945.303 Requirements governing occupancy in designated housing.
(a) Priority for occupancy. Except as provided in paragraph (c) of this section, in determining priority for admission to designated housing, the PHA shall make units in the designated housing available only to designated families. (b) Compliance with preference regulations. Among the designated families, the PHA shall give preference in accordance with the preferences in 24 CFR part 960, subpart B. (c) Eligibility of other families for housing designated for elderly families--(1) Insufficient elderly families. If there are an insufficient number of elderly families for the units in a project designated for elderly families, the PHA may make dwelling units available to near-elderly families, who qualify for preferences under 24 CFR part 960, subpart B. The election to make dwelling units available to near-elderly families if there are an insufficient number of elderly families should be explained in the PHA's allocation plan. (2) Insufficient elderly families and near-elderly families. If there are an insufficient number of elderly families and near-elderly families for the units in a project designated for elderly families, the PHA shall make available to all other families any dwelling unit that is: (i) Ready for re-rental and for a new lease to take effect; and (ii) Vacant for more than 60 consecutive days. (d) Tenant choice of housing. (1) Subject to paragraph (d)(2) of this section, {[[Page 411]]} the decision of any disabled family or elderly family not to occupy or accept occupancy in designated housing shall not have an adverse affect on: (i) The family's admission to or continued occupancy in public housing; or (ii) The family's position on or placement on a public housing waiting list.
Subpart C_Operating Designated Housing
Sec. 945.301 General requirements.
The application procedures and operation of designated projects shall be in conformity with the regulations of this part, and the regulations applicable to PHAs in 24 CFR Chapter IX, including 24 CFR parts 913, 960 and 966, and, in particular, the nondiscrimination requirements of 24 CFR 960.211(b)(3), that include but are not limited to section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), Fair Housing Act (42 U.S.C. 3601-3619), title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u), the Age Discrimination Act (42 U.S.C. 6101-6107), Executive Order 11246 (3 CFR 1964-1965 Comp., p. 339), Executive Order 11063, as amended by Executive Order 12259 (3 CFR 19581963 Comp., p. 652 and 3 CFR 1980 Comp., p. 307), the Americans with Disabilities Act (42 U.S.C. 12101-12213) (to the extent the Americans with Disabilities Act is applicable) and the implementing regulations of these statutes and authorities; and other applicable Federal, State, and local laws prohibiting discrimination and promoting equal opportunity.
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(2) The protection provided by paragraph (d)(1) of this section shall not apply to any family who refuses to occupy or accept occupancy in designated housing because of the race, color, religion, sex, disability, familial status, or national origin of the occupants of the designated housing or the surrounding area. (3) The protection provided by paragraph (d)(1) of this section shall apply to an elderly family or disabled family that declines to accept occupancy, respectively, in a designated project for elderly families or for disabled families, and requests occupancy in a general occupancy project or in a mixed population project. (e) Appropriateness of dwelling unit to family size. This part may not be construed to require a PHA to offer a dwelling in a designated project to any family who is not of appropriate family size for the dwelling unit. The temporary absence of a child from the home due to placement in foster care is not considered in determining family composition and family size. (f) Prohibition of evictions. Any tenant who is lawfully residing in a dwelling unit in a public housing project may not be evicted or otherwise required to vacate the unit because of the designation of the project, or because of any action taken by HUD or the PHA in accordance with this part. (g) Prohibition of coercion to accept supportive services. As with other HUDassisted housing, no disabled family or elderly family residing in designated housing may be required to accept supportive services made available by the PHA under this part. (h) Availability of grievance procedures in 24 CFR part 966. The grievance procedures in 24 CFR part 966, subpart B, which applies to public housing tenants, is applicable to this part.
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[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 452-455] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 963_PUBLIC HOUSING_CONTRACTING WITH RESIDENT-OWNED BUSINESSES Subpart A_General 963.1 Purpose. 963.3 Applicability. 963.5 Definitions. Subpart B_Contracting with ResidentOwned Businesses 963.10 Eligible resident-owned businesses. 963.12 Alternative procurement process. Authority: 42 U.S.C. 1437 and 3535(d). Source: 57 FR 20189, May 11, 1992, unless otherwise noted. {[[Page 453]]}
Subpart A_General
Sec. 963.1 Purpose.
The purpose of this part is to enhance the economic opportunities of public housing residents by providing public housing agencies with a method of soliciting and contracting with eligible and qualifed resident-owned businesses (as defined in this part) for public housing services, supplies, or construction. The contract
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Certification. A written assertion based on supporting evidence, which shall be kept available for inspection by the Secretary, the Inspector General, and the public, which assertion shall be deemed to be accurate for purposes of this part, unless the Secretary determines otherwise after inspecting the evidence and providing due notice and opportunity for comment. Contract or public housing contract. Any contract awarded by a PHA for services, supplies, or construction necessary for the development, operation, modernization, or maintenance of public housing. Management officials. The individuals who possess the power to make the day-today, as well as major, decisions on matters of management, policy, and operations of the resident-owned business. Principal. An owner, partner, director, or management official of the residentowned business with the power and authority to represent the business and to execute contract, leases, agreements, and other documents on behalf of the business. Public housing or public housing development. Any public housing development which is owned by a Public Housing Agency (PHA) and is receiving funds under an Annual Contribution Contract (ACC). Public housing resident. Any individual who resides in public housing as a signatory on a public housing lease, or as a member of the family of the individual(s) who is the signatory on the public housing lease. Resident-owned business. Any business concern which is owned and controlled by public housing residents. (The term ``resident-owned business'' includes sole proprietorships.) For purposes of this part, ``owned and controlled'' means a business: (1) Which is at least 51 percent owned by one or more public housing residents; and {[[Page 454]]} (2) Whose management and daily business operations are controlled by one or more such individuals. All securities which constitute ownership or control of a corporation for
award method provided by this part is based on the established procurement procedures set forth in 24 CFR 85.36, with solicitation as provided by these procedures limited to resident-owned businesses. The contract award method provided by this part is not a requirement. It is an alternative procurement method available to public housing agencies, subject to the conditions set forth in this part, and subject to permissibility under State and local laws.
Sec. 963.3 Applicability.
The policies and procedures contained in this part apply to public housing developments that are owned by public housing agencies (PHAs) and that are covered by Annual Contributions Contracts (ACC) with the Department. Public housing contracts eligible to be awarded under the alternative procurement process provided by this part are limited to individual contracts that do not exceed $1,000,000. Residentowned businesses eligible to participate in the alternative procurement process are limited to those that meet the eligibility requirements of SEC. 963.10. The policies and procedures contained in this part are consistent with the objectives of section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u), and similar Federal requirements imposed on public housing programs. (See 24 CFR 941.208(a) and 24 CFR 968.110(a)). [57 FR 20189, May 11, 1992, as amended at 59 FR 33895, June 30, 1994]
Sec. 963.5 Definitions.
The terms HUD and Public housing agency (PHA) are defined in 24 CFR part 5. Act. The U.S. Housing Act of 1937 (42 U.S.C. 1437). Alternative procurement process. The alternative method of public housing contract award available to public housing agencies and eligible resident-owned businesses under the conditions set forth in this part. Annual Contributions Contract (ACC). See definition in 24 CFR 968.105.
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purposes of establishing the business as a resident-owned business shall be held directly by the public housing residents. No securities held in trust, or by any guardian for a minor, shall be considered as held by the public housing resident in determining the ownership or control of a corporation. [57 FR 20189, May 11, 1992, as amended at 61 FR 5215, Feb. 9, 1996]
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Subpart B_Contracting With Resident-Owned Businesses
Sec. 963.10 Eligible residentowned businesses.
To be eligible for the alternative procurement process provided by this part, a business must meet the following requirements, and must submit evidence to the PHA, in the form described below, or as the PHA may require, that shows how each requirement has been met. (a) Legally formed business. The business shall submit certified copies of any State, county, or municipal licenses that may be required of the business to engage in the type of business activity for which it was formed. Where applicable (as for example, in the case of corporations), the business also shall submit a certified copy of its corporate charter or other organizational document that verifies that the business was properly formed in accordance with State law. (b) Resident-owned business. The business shall submit a certification that it is a resident-owned business as defined by this part. The business shall disclose to the PHA all owners of the business, and each owner's percentage of ownership interest in the business. The business also shall disclose all individuals who possess the power to make the day-to-day, as well as major, decisions on matters of management, policy, and operations (management officials). The business shall identify all owners and management officials who are not public housing residents, and shall disclose any relationship that these owners and officials may have to a business (resident- or non-
resident-owned) engaged in the type of business activity with which the residentowned business is engaged. For purposes of this part, ``relationship'' means employment by, or having an ownership interest in, a business. The business also shall submit such evidence as the PHA may require to verify that the owner or owners identified as public housing residents reside within public housing of the PHA. (c) Responsibility to complete contract. The business shall submit evidence sufficient to demonstrate to the satisfaction of the PHA that the business has the ability to perform successfully under the terms and conditions of the proposed contract. Consideration will be given to various factors, including but not limited to those identified in 24 CFR 85.36(b)(8) and also to such matters as proof of completion of courses in business administration or financial management, and proof of job training or apprenticeship in the particular trade, business, profession, or occupation. (d) Limitation on alternative procurement contract awards. The business shall submit a certification as to the number of contracts awarded, and the dollar amount of each contract award received, under the alternative procurement process provided by this part. A residentowned business is not eligible to participate in the alternative procurement process provided by this part if the residentowned business has received under this process one or more contracts with a total combined dollar value of $1,000,000. [57 FR 20189, May 11, 1992, as amended at 59 FR 33895, June 30, 1994]
Sec. 963.12 Alternative procurement process.
(a) Method of procurement. In contracting with resident-owned businesses, the PHA shall follow the applicable method of procurement as set forth in 24 CFR 85.36(d), with solicitation limited to residentowned businesses. Additionally, the PHA shall ensure that the method of
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procurement conforms to the procurement standards set forth in 24 CFR 85.36(b). {[[Page 455]]} (b) Contract awards. Contracts awarded under this part shall be made only to resident-owned businesses that meet the requirements of SEC. 963.10, and that comply with such other requirements as may be required of a contractor under the particular procurement and the Department's regulations. An award shall not be made to the resident-owned business if the contract award exceeds the independent cost estimate required by 24 CFR 85.36(f), and the price normally paid for comparable supplies, services, or construction in the project area. (c) Contract requirements. Any contract entered into between a PHA and a residentowned business under this part shall comply with: the contract provisions of 24 CFR 85.36(i); the provisions of 24 CFR 85.36(h), 24 CFR 968.240(d) or 24 CFR 968.335(c)(1) governing bonding requirements, where applicable; and such other contract terms that may be applicable to the particular procurement under the Department's regulations. In addition to the recordkeeping requirements imposed by 24 CFR 85.36(i), the PHA also shall maintain records sufficient to detail the significant history of the procurement made under this part. These records will include, but are not necessarily limited to the following: The independent cost estimate and comparable price analysis as required by paragraph (b) of this section; the basis for contractor selection, including documentation concerning the eligibility of the selected resident-owned business under SEC. 963.10; and the basis for determining the reasonableness of the proposed contract price.
24 CFR 964 (Section 320 only) Tenant Participation And Tenant Opportunities
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 455-472] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 964_TENANT PARTICIPATION AND TENANT OPPORTUNITIES IN PUBLIC HOUSING
Sec. 964.320 HUD Policy on training, employment, contracting and subcontracting of public housing residents.
In accordance with Section 3 of the Housing and Urban Development Act of 1968 and the implementing regulations at 24 CFR part 135, HAs, their contractors and subcontractors shall make best efforts, consistent with existing Federal, State, and local laws and regulations, to give low and very low-income persons the training and employment opportunities generated by Section 3 covered assistance (as this term is defined in 24 CFR 135.7) and to give Section 3 business concerns the contracting opportunities generated by Section 3 covered assistance. Training, employment and contracting opportunities connected with programs funded under the FIC and TOP are covered by Section 3. {[[Page 470]]}
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24 CFR 965 PHA-Owned Or Leased Projects
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 472-484] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 965_PHA-OWNED OR LEASED PROJECTS_GENERAL PROVISIONS Subpart A_Preemption of State Prevailing Wage Requirements 965.101 Preemption of State prevailing wage requirements. Subpart B_Required Insurance Coverage 965.201 Purpose and applicability. 965.205 Qualified PHA-owned insurance entity. 965.215 Lead-based paint liability insurance coverage. Subpart C_Energy Audits and Energy Conservation Measures 965.301 Purpose and applicability. 965.302 Requirements for energy audits. 965.303 [Reserved]. 965.304 Order of funding. 965.305 Funding. 965.306 Energy conservation equipment and practices. 965.307 Compliance schedule. {[[Page 473]]} 965.308 Energy performance contracts. Subpart D_Individual Metering of Utilities for Existing PHA-Owned Projects
965.401 Individually metered utilities. 965.402 Benefit/cost analysis. 965.403 Funding. 965.404 Order of conversion. 965.405 Actions affecting residents. 965.406 Benefit/cost analysis for similar projects. 965.407 Reevaluations of mastermeter systems. Subpart E_Resident Allowances for Utilities 965.501 Applicability. 965.502 Establishment of utility allowances by PHAs. 965.503 Categories for establishment of allowances. 965.504 Period for which allowances are established. 965.505 Standards for allowances for utilities. 965.506 Surcharges for excess consumption of PHA-furnished utilities. 965.507 Review and revision of allowances. 965.508 Individual relief. Subpart F_Physical Condition Standards and Physical Inspection Requirements 965.601 Physical condition standards; physical inspection requirements. Subpart G [Reserved] Subpart H_Lead-Based Paint Poisoning Prevention 965.701 Lead-based paint poisoning prevention. Subpart I_Fire Safety 965.800 Applicability. 965.805 Smoke detectors. Authority: 42 U.S.C. 1437, 1437a, 1437d, 1437g, and 3535(d). Subpart H is also issued under 42 U.S.C. 4821-4846. Source: 41 FR 20276, May 17, 1976, unless otherwise noted. Redesignated at 49 FR 6714, Feb. 23, 1984.
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determined by the Secretary of Labor or an apprentice or trainee wage rate based thereon is applicable, the total wage rate determined under State law, including fringe benefits (if any) and basic hourly rate, shall be compared to the total wage rate determined by the Secretary of Labor or apprentice or trainee wage rate; and (B) where a rate determined by the Secretary of HUD is applicable, any fringe benefits determined under State law shall be excluded from the comparison with the rate determined by the Secretary of HUD. (b) Whenever paragraph (a)(1) of this section is applicable: {[[Page 474]]} (1) Any solicitation of bids or proposals issued by the PHA and any contract executed by the PHA for development, maintenance, and modernization of the project shall include a statement that any prevailing wage rate (including basic hourly rate and any fringe benefits) determined under State law to be prevailing with respect to an employee in any trade or position employed under the contract is inapplicable to the contract and shall not be enforced against the contractor or any subcontractor with respect to employees engaged under the contract whenever either of the following occurs: (i) Such nonfederal prevailing wage rate exceeds: (A) The applicable wage rate determined by the Secretary of Labor pursuant to the DavisBacon Act (40 U.S.C. 276a et seq.) to be prevailing in the locality with respect to such trade; (B) an applicable apprentice wage rate based thereon specified in an apprenticeship program registered with the Department of Labor or a DOL-recognized State Apprenticeship Agency or (C) an applicable trainee wage rate based thereon specified in a DOLcertified trainee program; or (ii) Such nonfederal prevailing wage rate, exclusive of any fringe benefits, exceeds the applicable wage rate determined by the Secretary of HUD to be prevailing in the locality with respect to such trade or position.
Subpart A_Preemption of State Prevailing Wage Requirements
Sec. 965.101 Preemption of State prevailing wage requirements.
(a) A prevailing wage rate including basic hourly rate and any fringe benefits) determined under State law shall be inapplicable to a contract or PHA-performed work item for the development, maintenance, and modernization of a project whenever: (1) The contract or work item: (i) Is otherwise subject to State law requiring the payment of wage rates determined by a State or local government or agency to be prevailing and (ii) is assisted with funds for low-income public housing under the U.S. Housing Act of 1937, as amended; and (2) The wage rate determined under State law to be prevailing with respect to an employee in any trade or position employed in the development, maintenance, and modernization of a project exceeds whichever of the following Federal wage rates is applicable: (i) The wage rate determined by the Secretary of Labor pursuant to the DavisBacon Act (40 U.S.C. 276a et seq.) to be prevailing in the locality with respect to such trade; (ii) An applicable apprentice wage rate based thereon specified in an apprenticeship program registered with the Department of Labor or a DOL-recognized State Apprenticeship Agency; (iii) An applicable trainee wage rate based thereon specified in a DOL-certified trainee program; or (iv) The wage rate determined by the Secretary of HUD to be prevailing in the locality with respect to such trade or position. (v) For the purpose of ascertaining whether a wage rate determined under State law for a trade or position exceeds the Federal wage rate: (A) Where a rate
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Failure to include this statement may constitute grounds for requiring resolicitation of the bid or proposal; (2) The PHA itself shall not be required to pay the basic hourly rate or any fringe benefits comprising a prevailing wage rate determined under State law and described in paragraph (a)(2) of this section to any of its own employees who may be engaged in the work item for development, maintenance, and modernization of the project; and (3) Neither the basic hourly rate nor any fringe benefits comprising a prevailing wage rate determined under State law and described in paragraph (a)(2) shall be enforced against the PHA or any of its contractors or subcontractors with respect to employees engaged in the contract or PHAperformed work item for development, maintenance, and modernization of the project. (c) Nothing in this section shall affect the applicability of any wage rate established in a collective bargaining agreement with a PHA or its contractors or subcontractors where such wage rate equals or exceeds the applicable Federal wage rate referred to in paragraph (a)(2) of this section, nor does this section impose a ceiling on wage rates a PHA or its contractors or subcontractors may choose to pay independent of State law. (d) The provisions of this section shall be applicable to work performed under any prime contract entered into as a result of a solicitation of bids or proposals issued on or after October 6, 1988 and to any work performed by employees of a PHA on or after October 6, 1988, but not to work or contracts administered by Indian Housing Authorities (for which, see part 905 of this chapter). [53 FR 30217, Aug. 10, 1988, as amended at 57 FR 28358, June 24, 1992; 61 FR 8736, Mar. 5, 1996]
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Sec. 965.201 Purpose and applicability.
(a) Purpose. The purpose of this subpart is to implement policies concerning insurance coverage required under the Annual Contributions Contract (ACC) between the U.S. Department of Housing and Urban Development (HUD) and a Public Housing Agency (PHA). (b) Applicability. The provisions of this subpart apply to all housing owned by PHAs, including Turnkey III housing. However, these provisions do not apply to Section 23 and Section 10(c) PHA-leased projects or to Section 8 Housing Assistance Payments Program projects.
Sec. 965.205 Qualified PHAowned insurance entity.
(a) Contractual requirements for insurance coverage. The Annual Contributions Contract (ACC) between PHAs and the U.S. Department of Housing and Urban Development requires that {[[Page 475]]} PHAs maintain specified insurance coverage for property and casualty losses that would jeopardize the financial stability of the PHAs. The insurance coverage is required to be obtained under procedures that provide ``for open and competitive bidding.'' The HUD Appropriations Act for Fiscal Year 1992 provided that a PHA could purchase insurance coverage without regard to competitive selection procedures when it purchases it from a nonprofit insurance entity owned and controlled by PHAs approved by HUD in accordance with standards established by regulation. This section specifies the standards. (b) Method of selecting insurance coverage. While 24 CFR part 85 requires that grantees solicit full and open competition for their procurements, the HUD Appropriations Act for Fiscal Year 1992 provides an exception to this requirement. PHAs are authorized to obtain any line of insurance from a nonprofit insurance entity that is owned and controlled by PHAs and approved by HUD in
Subpart B_Required Insurance Coverage
Source: 58 FR 51957, Oct. 5, 1993, unless otherwise noted.
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(A) At the management level of Vice President of a property/casualty insurance entity; (B) As a senior branch manager of a branch office with annual property/casualty premiums exceeding $5 million; or (C) As a senior manager of a public entity risk pool. Documentation for this standard must include copies of resumes of key management personnel responsible for oversight and for the day-to-day operation of the entity; (iii) The entity maintains internal controls and cost containment measures, as evidenced by an annual budget; (iv) The entity maintains sound investments consistent with the State insurance commissioner's requirements for licensed insurance companies, or other State statutory requirements controlling investments of public entities, in the State in which the entity is organized, investing only in assets that qualify as ``admitted assets''; (v) The entity maintains adequate surplus and reserves for undischarged liabilities of all types, as evidenced by a current audited financial statement and an actuarial review conducted in accordance with paragraph (d) of this section; and {[[Page 476]]} (vi) Upon application for initial approval, the entity has proper organizational documentation, as evidenced by copies of the articles of incorporation, by-laws, business plans, copies of contracts with third party administrators, and an opinion from legal counsel that establishment of the entity conforms with all legal requirements under Federal and State law. Any material changes made to these documents after initial approval must be submitted for review and approval before becoming effective. (d) Professional evaluations of performance. Audits and actuarial reviews are required to be prepared and submitted annually to the HUD Office of Public and Indian Housing, for review and appropriate action, by nonprofit insurance entities that are not insurance companies approved under paragraph (c)(1) of this section. In addition,
accordance with this section, without regard to competitive selection procedures. Procurement of insurance from other entities is subject to competitive selection procedures. (c) Approval of a nonprofit insurance entity. Under the following conditions, HUD will approve a nonprofit self-funded insurance entity created by PHAs that limits participation to PHAs (and to nonprofit entities associated with PHAs that engage in activities or perform functions only for housing authorities or housing authority residents): (1) An insurance company (including a risk retention group). (i) The insurance company is licensed or authorized to do business in the State by the State Insurance Commissioner and has submitted documentation of this approval to HUD; and (ii) The insurance company has not been suspended from providing insurance coverage in the State or been suspended or debarred from doing business with the federal government. The insurance company is obligated to send to HUD a copy of any action taken by the authorizing official to withdraw the license or authorization. (2) An entity not organized as an insurance company. (i) The entity has competent underwriting staff (hired directly or engaged by contract with a third party), as evidenced by professionals with an average of at least five years of experience in large risk (exceeding $100,000 in annual premiums) commercial underwriting or at least five years of experience in the underwriting of risks for public entity risk pools. This standard may be satisfied by submission of evidence of competent underwriting staff, including copies of resumes of underwriting staff for the entity; (ii) The entity has efficient and qualified management (hired directly or engaged by contract with a third party), as evidenced by the report submitted to HUD in accordance with paragraph (d)(3) of this section and by having at least one senior staff person who has a minimum of five years of experience:
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an evaluation of other management factors is required to be performed by an insurance professional every three years. For fiscal years ending on or after December 31, 1993, the initial audit, actuarial review, and insurance management review required for a nonprofit insurance entity must be submitted to HUD within 90 days after the entity's fiscal year. (1) The annual financial statement prepared in accordance with generally accepted accounting principles (including any supplementary data required under GASB 10) is to be audited by an independent auditor (see 24 CFR part 44), in accordance with generally accepted auditing standards. The independent auditor shall express an opinion on whether the entity's financial statement is presented fairly in accordance with generally accepted accounting principles. A copy of this audit must be submitted to HUD. (2) The actuarial review must be done consistent with requirements established by the National Association of Insurance Commissioners and must be conducted by an independent property/casualty actuary who is an Associate or Fellow of a recognized professional actuarial organization, such as the Casualty Actuary Society. The report issued, a copy of which must be submitted to HUD, must include an opinion on any over or under reserving and the adequacy of the reserves maintained for the open claims and for incurred but unreported claims. (3) A review must be conducted, a copy of which must be submitted to HUD, by an independent insurance consulting firm that has at least one person on staff who has received the professional designation of chartered property/casualty underwriter (CPCU), associate in risk management (ARM), or associate in claims (AIC), of the following: (i) Efficiency of any Third Party Administrator; (ii) Timeliness of the claim payments and reserving practices; and (iii) The adequacy of reinsurance coverage.
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(e) Revocation of approval of a nonprofit insurance entity. HUD may revoke its approval of a nonprofit insurance entity under this section when it no longer meets the requirements of this section. The nonprofit insurance entity will be notified in writing of: the proposed revocation of its approval, the reasons for the action, and the manner and time in which to request a hearing to challenge the determination. The procedure to be followed is specified in 24 CFR part 26, subpart A. [41 FR 20276, May 17, 1976, as amended at 61 FR 7969, Feb. 29, 1996; 61 FR 50219, Sept. 24, 1996]
Sec. 965.215 Lead-based paint liability insurance coverage.
(a) General. The purpose of this section is to specify what HUD deems reasonable insurance coverage with respect to the hazards associated with lead-based paint activities that the PHA undertakes, in accordance with the PHA's ACC with HUD. The insurance coverage does not relieve the PHA of its responsibility for assuring that lead-based paint activities are conducted in a responsible manner. (b) Insurance coverage requirements. When the PHA undertakes leadbased paint activities, it must assure that it has reasonable insurance coverage for itself for potential personal injury liability associated with those activities. If the work is being done by PHA employees, the PHA must obtain a liability insurance policy directly to protect the PHA. If the work is being done by {[[Page 477]]} a contractor, the PHA must obtain, from the insurer of the contractor performing this type of work in accordance with a contract, a certificate of insurance providing evidence of such insurance and naming the PHA as an additional insured; or obtain such insurance directly. Insurance must remain in effect during the entire period of lead-based paint activity and must comply with the following requirements: (1) Named insured. If purchased by the PHA, the policy shall name the PHA as
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this section until the expiration of the policy. This section is not applicable to architects, engineers or consultants who do not physically perform lead-based paint activities. (d) Insurance for the existence of leadbased paint hazards. A PHA may also purchase special liability insurance against the existence of lead-based paint hazards, although it is not a required coverage. A PHA may purchase this coverage if, in the opinion of the PHA, the policy meets the PHA's requirements, the premium is reasonable and the policy is obtained in accordance with applicable procurement standards. (See part 85 of this title and SEC. 965.205 of this title.) If this coverage is purchased, the premium must be paid from funds available under the Performance Funding System or from reserves. [59 FR 31930, June 21, 1994, as amended at 64 FR 50228, Sept. 15, 1999]
insured. If purchased by an independent contractor, the policy shall name the contractor as insured and the PHA as an additional insured, in connection with performing work under the PHA's contract pertaining to lead-based paint activities. If the PHA has executed a contract with a Resident Management Corporation (RMC) to manage a building/project on behalf of the PHA, the RMC shall be an additional insured under the policy in connection with the PHA's contract related to lead-based paint activities. (The duties of the RMC are similar to those of a real estate management firm.) (2) Coverage limits. The minimum limit of liability shall be $500,000 per occurrence written, with a combined single limit for bodily injury and property damage. (3) Deductible. A deductible, if any, may not exceed $5,000 per occurrence. (4) Supplementary payments. Payments for such supplementary costs as the costs of defending against a claim must be in addition to, and not as a reduction of, the limit of liability. However, it will be permissible for the policy to have a limit on the amount payable for defense costs. If a limit is applicable, it must not be less than $250,000 per claim prior to such costs being deducted from the limit of liability. (5) Occurrence form policy. The form used must be an ``occurrence'' form, or a ``claims made'' form that contains an extended reporting period of at least five years. (Under an occurrence form, coverage applies to any loss regardless of when the claim is made.) (6) Aggregate limit. If the policy contains an aggregate limit, the minimum acceptable limit is $1,000,000. (7) Cancellation. In the event of cancellation, at least 30 days' advance notice is to be given to the insured and any additional insured. (c) Exception to requirements. Insurance already purchased by the PHA or contractor and enforced on the day this section is effective which provides coverage for lead-based paint activities shall be considered as meeting the requirements of
Subpart C_Energy Audits and Energy Conservation Measures
Source: 61 FR 7969, Feb. 29, 1996, unless otherwise noted.
Sec. 965.301 Purpose and applicability.
(a) Purpose. The purpose of this subpart C is to implement HUD policies in support of national energy conservation goals by requiring PHAs to conduct energy audits and undertake certain cost-effective energy conservation measures. (b) Applicability. The provisions of this subpart apply to all PHAs with PHA-owned housing, but they do not apply to Indian Housing Authorities. (For similar provisions applicable to Indian housing, see part 950 of this {[[Page 478]]} chapter.) No PHA-leased project or Section 8 Housing Assistance Payments Program project, including a PHA-owned Section 8 project, is covered by this subpart.
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Sec. 965.302 Requirements for energy audits.
All PHAs shall complete an energy audit for each PHA-owned project under management, not less than once every five years. Standards for energy audits shall be equivalent to State standards for energy audits. Energy audits shall analyze all of the energy conservation measures, and the payback period for these measures, that are pertinent to the type of buildings and equipment operated by the PHA.
Sec. 965.303 [Reserved] Sec. 965.304 Order of funding.
Within the funds available to a PHA, energy conservation measures should be accomplished with the shortest pay-back periods funded first. A PHA may make adjustments to this funding order because of insufficient funds to accomplish high-cost energy conservation measures (ECM) or where an ECM with a longer pay-back period can be more efficiently installed in conjunction with other planned modernization. A PHA may not install individual utility meters that measure the energy or fuel used for space heating in dwelling units that need substantial weatherization, when installation of meters would result in economic hardship for residents. In these cases, the ECMs related to weatherization shall be accomplished before the installation of individual utility meters.
that HUD may designate to be used for energy conservation. (b) If a PHA finances energy conservation measures from sources other than modernization or operating reserves, such as a loan from a utility entity or a guaranteed savings agreement with a private energy service company, HUD may agree to provide adjustments in its calculation of the PHA's operating subsidy eligibility under the PFS for the project and utility involved based on a determination that payments can be funded from the reasonably anticipated energy cost savings (See SEC. 990.107(g) of this chapter).
Sec. 965.306 Energy conservation equipment and practices.
In purchasing original or, when needed, replacement equipment, PHAs shall acquire only equipment that meets or exceeds the minimum efficiency requirements established by the U.S. Department of Energy. In the operation of their facilities, PHAs shall follow operating practices directed to maximum energy conservation.
Sec. 965.307 Compliance schedule.
All energy conservation measures determined by energy audits to be cost effective shall be accomplished as funds are available.
Sec. 965.305 Funding.
(a) The cost of accomplishing costeffective energy conservation measures, including the cost of performing energy audits, shall be funded from operating funds of the PHA to the extent feasible. When sufficient operating funds are not available for this purpose, such costs are eligible for inclusion in a modernization program, for funding from any available development funds in the case of projects still in development, or for other available funds
Sec. 965.308 Energy performance contracts.
(a) Method of procurement. Energy performance contracting shall be conducted using one of the following methods of procurement: (1) Competitive proposals (see 24 CFR 85.36(d)(3)). In identifying the evaluation factors and their relative importance, as required by SEC. 85.36(d)(3)(i) of this title, the solicitation shall state that technical factors are significantly more important than price (of the energy audit); or
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will be cost effective, except as otherwise provided in SEC. 965.405. (b) Proposed installation of checkmeters shall be justified on the basis that the cost of debt service (interest and amortization) of the estimated installation costs plus the operating costs of the checkmeters will be more than offset by reduction in future utilities expenditures to the PHA under the mastermeter system. (c) Proposed conversion to retail service shall be justified on the basis of net savings to the PHA. This determination involves making a comparison between the reduction in utility expense obtained through eliminating the expense to the PHA for PHA-supplied utilities and the resultant allowance for resident-supplied utilities, based on the cost of utility service to the residents after conversion.
(2) If the services are available only from a single source, noncompetitive proposals (see 24 CFR 85.36(d)(4)(i)(A)). (b) HUD Review. Solicitations for energy performance contracting shall be submitted to the HUD Field Office for review and approval prior to issuance. Energy performance contracts shall be submitted to the HUD Field Office for review and approval before award. {[[Page 479]]}
Subpart D_Individual Metering of Utilities for Existing PHA-Owned Projects
Source: 61 FR 7970, Feb. 29, 1996, unless otherwise noted.
Sec. 965.401 Individually metered utilities.
(a) All utility service shall be individually metered to residents, either through provision of retail service to the residents by the utility supplier or through the use of checkmeters, unless: (1) Individual metering is impractical, such as in the case of a central heating system in an apartment building; (2) Change from a mastermetering system to individual meters would not be financially justified based upon a benefit/cost analysis; or (3) Checkmetering is not permissible under State or local law, or under the policies of the particular utility supplier or public service commission. (b) If checkmetering is not permissible, retail service shall be considered. Where checkmetering is permissible, the type of individual metering offering the most savings to the PHA shall be selected.
Sec. 965.403 Funding.
The cost to change mastermeter systems to individual metering of resident consumption, including the costs of benefit/cost analysis and complete installation of checkmeters, shall be funded from operating funds of the PHA to the extent feasible. When sufficient operating funds are not available for this purpose, such costs are eligible for inclusion in a modernization project or for funding from any available development funds.
Sec. 965.404 Order of conversion.
Conversions to individually metered utility service shall be accomplished in the following order when a PHA has projects of two or more of the designated categories, unless the PHA has a justifiable reason to do otherwise, which shall be documented in its files. (a) In projects for which retail service is provided by the utility supplier and the PHA is paying all the individual utility bills, no benefit/cost analysis is necessary, and residents shall be billed directly after the PHA adopts revised payment schedules
Sec. 965.402 Benefit/cost analysis.
(a) A benefit/cost analysis shall be made to determine whether a change from a mastermetering system to individual meters
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providing appropriate allowances for resident-supplied utilities. (b) In projects for which checkmeters have been installed but are not being utilized as the basis for determining utility charges to the residents, no benefit/cost analysis is necessary. The checkmeters shall be used as the basis for utility charges, and residents shall be surcharged for excess utility use. (c) Projects for which meter loops have been installed for utilization of checkmeters shall be analyzed both for the installation of checkmeters and for conversion to retail service. (d) Low- or medium-rise family units with a mastermeter system should be analyzed for both checkmetering and conversion to retail service, because of their large potential for energy savings. (e) Low- or medium-rise housing for the elderly should next be analyzed for both checkmetering and conversion to retail service, since the potential for energy saving is less than for family units. {[[Page 480]]} (f) Electric service under mastermeters for high-rise buildings, including projects for the elderly, should be analyzed for both use of retail service and of checkmeters.
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will be advantageous to residents who conserve energy. (d) A transition period of at least six months shall be provided in the case of initiation of checkmeters, during which residents will be advised of the charges but during which no surcharge will be made based on the readings. This trial period will afford residents ample notice of the effects the checkmetering system will have on their individual utility charges and also afford a test period for the adequacy of the utility allowances established. (e) During and after the transition period, PHAs shall advise and assist residents with high utility consumption on methods for reducing their usage. This advice and assistance may include counseling, installation of new energy conserving equipment or appliances, and corrective maintenance.
Sec. 965.406 Benefit/cost analysis for similar projects.
PHAs with more than one project of similar design and utilities service may prepare a benefit/cost analysis for a representative project. A finding that a change in metering is not cost effective for the representative project is sufficient reason for the PHA not to perform a benefit/cost analysis on the remaining similar projects.
Sec. 965.405 Actions affecting residents.
(a) Before making any conversion to retail service, the PHA shall adopt revised payment schedules, providing appropriate allowances for the resident-supplied utilities resulting from the conversion. (b) Before implementing any modifications to utility services arrangements with the residents or charges with respect thereto, the PHA shall make the requisite changes in resident dwelling leases in accordance with 24 CFR part 966. (c) PHAs must work closely with resident organizations, to the extent practicable, in making plans for conversion of utility service to individual metering, explaining the national policy objectives of energy conservation, the changes in charges and rent structure that will result, and the goals of achieving an equitable structure that
Sec. 965.407 Reevaluations of mastermeter systems.
Because of changes in the cost of utility services and the periodic changes in utility regulations, PHAs with mastermeter systems are required to reevaluate mastermeter systems without checkmeters by making benefit/cost analyses at least every 5 years. These analyses may be omitted under the conditions specified in SEC. 965.406.
Subpart E_Resident Allowances for Utilities
Source: 61 FR 7971, Feb. 29, 1996, unless otherwise noted.
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equipment and function whose utility consumption requirements were included in determining the amounts of the allowances or scheduled surcharges; shall notify residents of the place where the PHA's record maintained in accordance with paragraph (b) of this section is available for inspection; and shall provide all residents an opportunity to submit written comments during a period expiring not less than 30 days before the proposed effective date of the allowances or scheduled surcharges or revisions. Such written comments shall be retained by the PHA and shall be available for inspection by residents. (d) Schedules of allowances and scheduled surcharges shall not be subject to approval by HUD before becoming effective, but will be reviewed in the course of audits or reviews of PHA operations. (e) The PHA's determinations of allowances, scheduled surcharges, and revisions thereof shall be final and valid unless found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Sec. 965.501 Applicability.
(a) This subpart E applies to public housing, including the Turnkey III Homeownership Opportunities program. This subpart E also applies to units assisted under sections 10(c) and 23 of the U. S. Housing Act of 1937 (42 U.S.C. 1437 et seq.) as in effect before amendment by the Housing and Community Development Act of 1974 (12 U.S.C. 1706e) and to which 24 CFR part 900 is not applicable. This subpart E does not apply to Indian housing projects (see 24 CFR part 950). (b) In rental units for which utilities are furnished by the PHA but there are no checkmeters to measure the actual utilities consumption of the individual units, residents shall be subject to charges for consumption by resident-owned major appliances, or for optional functions of PHA-furnished equipment, in accordance with SEC. 965.502(e) and 965.506(b), but no utility allowance will be established.
Sec. 965.502 Establishment of utility allowances by PHAs.
(a) PHAs shall establish allowances for PHA-furnished utilities for all checkmetered utilities and allowances for residentpurchased utilities for all utilities purchased directly by residents from the utilities suppliers. {[[Page 481]]} (b) The PHA shall maintain a record that documents the basis on which allowances and scheduled surcharges, and revisions thereof, are established and revised. Such record shall be available for inspection by residents. (c) The PHA shall give notice to all residents of proposed allowances, scheduled surcharges, and revisions thereof. Such notice shall be given, in the manner provided in the lease or homebuyer agreement, not less than 60 days before the proposed effective date of the allowances or scheduled surcharges or revisions; shall describe with reasonable particularity the basis for determination of the allowances, scheduled surcharges, or revisions, including a statement of the specific items of
Sec. 965.503 Categories for establishment of allowances.
Separate allowances shall be established for each utility and for each category of dwelling units determined by the PHA to be reasonably comparable as to factors affecting utility usage.
Sec. 965.504 Period for which allowances are established.
(a) PHA-furnished utilities. Allowances will normally be established on a quarterly basis; however, residents may be surcharged on a monthly basis. The allowances established may provide for seasonal variations. (b) Resident-purchased utilities. Monthly allowances shall be established. The allowances established may provide for seasonal variations.
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Sec. 965.505 Standards for allowances for utilities.
(a) The objective of a PHA in designing methods of establishing utility allowances for each dwelling unit category and unit size shall be to approximate a reasonable consumption of utilities by an energyconservative household of modest circumstances consistent with the requirements of a safe, sanitary, and healthful living environment. (b) Allowances for both PHA-furnished and resident-purchased utilities shall be designed to include such reasonable consumption for major equipment or for utility functions furnished by the PHA for all residents (e.g., heating furnace, hot water heater), for essential equipment whether or not furnished by the PHA (e.g., range and refrigerator), and for minor items of equipment (such as toasters and radios) furnished by residents. (c) The complexity and elaborateness of the methods chosen by the PHA, in its discretion, to achieve the foregoing objective will depend upon the nature of the housing stock, data available to the PHA and the extent of the administrative resources reasonably available to the PHA to be devoted to the collection of such data, the formulation of methods of calculation, and actual calculation and monitoring of the allowances. (d) In establishing allowances, the PHA shall take into account relevant factors affecting consumption requirements, including: (1) The equipment and functions intended to be covered by the allowance for which the utility will be used. For instance, natural gas may be used for cooking, heating domestic water, or {[[Page 482]]} space heating, or any combination of the three; (2) The climatic location of the housing projects; (3) The size of the dwelling units and the number of occupants per dwelling unit; (4) Type of construction and design of the housing project;
(5) The energy efficiency of PHAsupplied appliances and equipment; (6) The utility consumption requirements of appliances and equipment whose reasonable consumption is intended to be covered by the total resident payment; (7) The physical condition, including insulation and weatherization, of the housing project; (8) Temperature levels intended to be maintained in the unit during the day and at night, and in cold and warm weather; and (9) Temperature of domestic hot water. (e) If a PHA installs air conditioning, it shall provide, to the maximum extent economically feasible, systems that give residents the option of choosing to use air conditioning in their units. The design of systems that offer each resident the option to choose air conditioning shall include retail meters or checkmeters, and residents shall pay for the energy used in its operation. For systems that offer residents the option to choose air conditioning, the PHA shall not include air conditioning in the utility allowances. For systems that offer residents the option to choose air conditioning but cannot be checkmetered, residents are to be surcharged in accordance with SEC. 965.506. If an air conditioning system does not provide for resident option, residents are not to be charged, and these systems should be avoided whenever possible.
Sec. 965.506 Surcharges for excess consumption of PHAfurnished utilities.
(a) For dwelling units subject to allowances for PHA-furnished utilities where checkmeters have been installed, the PHA shall establish surcharges for utility consumption in excess of the allowances. Surcharges may be computed on a straight per unit of purchase basis (e.g., cents per kilowatt hour of electricity) or for stated blocks of excess consumption, and shall be based on the PHA's average utility rate. The basis for calculating such surcharges shall be described in the PHA's schedule of allowances. Changes in the dollar amounts
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based. Adjustments to resident payments as a result of such changes shall be retroactive to the first day of the month following the month in which the last rate change taken into account in such revision became effective. Such rate changes shall not be subject to the 60 day notice requirement of SEC. 965.502(c).
of surcharges based directly on changes in the PHA's average utility rate shall not be subject to the advance notice requirements of this section. (b) For dwelling units served by PHAfurnished utilities where checkmeters have not been installed, the PHA shall establish schedules of surcharges indicating additional dollar amounts residents will be required to pay by reason of estimated utility consumption attributable to resident-owned major appliances or to optional functions of PHAfurnished equipment. Such surcharge schedules shall state the residentowned equipment (or functions of PHA-furnished equipment) for which surcharges shall be made and the amounts of such charges, which shall be based on the cost to the PHA of the utility consumption estimated to be attributable to reasonable usage of such equipment.
Sec. 965.508 Individual relief.
Requests for relief from surcharges for excess consumption of PHApurchased utilities, or from payment of utility supplier billings in excess of the allowances for resident-purchased utilities, may be granted by the PHA on reasonable grounds, such as special needs of elderly, ill or disabled residents, or special factors affecting utility usage not within the control of the resident, as the PHA shall deem appropriate. The PHA's criteria for granting such relief, and procedures for requesting such relief, shall be adopted at the time the PHA adopts the methods and procedures for determining utility allowances. Notice of the availability of such procedures (including identification of the PHA representative with whom initial contact may be made by residents), and the PHA's criteria for granting such relief, shall be included in each notice to residents given in accordance with SEC. 965.502(c) and in the information given to new residents upon admission.
Sec. 965.507 Review and revision of allowances.
(a) Annual review. The PHA shall review at least annually the basis on which utility allowances have been established and, if reasonably required in order to continue adherence to the standards stated in SEC. 965.505, shall establish revised allowances. The review shall include all changes in circumstances (including completion of modernization and/ or other energy conservation measures implemented by the PHA) indicating probability of a significant change in reasonable consumption requirements and changes in utility rates. (b) Revision as a result of rate changes. The PHA may revise its allowances for resident-purchased utilities between annual reviews if there is a rate change (including fuel adjustments) and shall be required to do so if such change, by itself or together with prior rate changes not adjusted for, results in a change of 10 percent or more from the rates on which such allowances were {[[Page 483]]}
Subpart F_Physical Condition Standards and Physical Inspection Requirements
Sec. 965.601 Physical condition standards; physical inspection requirements.
Housing owned or leased by a PHA, and public housing owned by another entity approved by HUD, must be maintained in accordance with the physical condition standards in 24 CFR part 5, subpart G. For each PHA, HUD will perform an independent physical inspection of a
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statistically valid sample of such housing based upon the physical condition standards in 24 CFR part 5, subpart G. [63 FR 46580, Sept. 1, 1998]
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Subpart G [Reserved] Subpart H_Lead-Based Paint Poisoning Prevention
Sec. 965.701 Lead-based paint poisoning prevention.
The requirements of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing regulations at part 35, subparts A, B, L, and R of this title apply to this program. [64 FR 50229, Sept. 15, 1999]
Subpart I_Fire Safety
Source: 57 FR 33853, July 30, 1992, unless otherwise noted.
Sec. 965.800 Applicability.
This subpart applies to all PHA-owned or -leased housing housing, including Mutual Help and Turnkey III.
Sec. 965.805 Smoke detectors.
(a) Performance requirement. (1) After October 30, 1992, each unit covered by this subpart must be equipped with at least one batteryoperated or hard-wired smoke detector, or such greater number as may be required by state or local codes, in working condition, on each level of the unit. In units occupied by hearing-impaired residents, smoke detectors must be hard-wired. (2) After October 30, 1992, the public areas of all housing covered by this subpart must be equipped with a sufficient number, but not less than one for each area, of battery-operated or hard-wired smoke detectors to serve as adequate warning of fire. Public areas include, but are not limited
to, laundry rooms, community rooms, day care centers, hallways, stairwells, and other common areas. (b) Acceptability criteria. (1) The smoke detector for each individual unit must be located, to the extent practicable, in a hallway adjacent to the bedroom or bedrooms. In units occupied by hearingimpaired residents, hard-wired smoke detectors must be connected to an alarm system designed {[[Page 484]]} for hearing-impaired persons and installed in the bedroom or bedrooms occupied by the hearing-impaired residents. Individual units that are jointly occupied by both hearing and hearing-impaired residents must be equipped with both audible and visual types of alarm devices. (2) If needed, battery-operated smoke detectors, except in units occupied by hearing-impaired residents, may be installed as a temporary measure where no detectors are present in a unit. Temporary batteryoperated smoke detectors must be replaced with hard-wired electric smoke detectors in the normal course of a PHA's planned CIAP or CGP program to meet the required HUD Modernization Standards or state or local codes, whichever standard is stricter. Smoke detectors for units occupied by hearing-impaired residents must be installed in accordance with the acceptability criteria in paragraph (b)(1) of this section. (c) Funding. PHAs shall use operating funds to provide batteryoperated smoke detectors in units that do not have any smoke detector in place. If operating funds or reserves are insufficient to accomplish this, PHAs may apply for emergency CIAP funding. The PHAs may apply for CIAP or CGP funds to replace battery-operated smoke detectors with hardwired smoke detectors in the normal course of a planned modernization program.
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968.210 Procedures for obtaining approval of a modernization program. 968.215 Resident and homebuyer participation. 968.225 Budget revisions. 968.230 Progress reports. 968.235 Time extensions. 968.240 HUD review of PHA performance. Subpart C_Comprehensive Grant Program (for PHAs That Own or Operate 250 or More Public Housing Units) 968.305 Definitions. 968.310 Determination of formula amount. 968.315 Comprehensive Plan (including five-year action plan). 968.320 HUD review and approval of comprehensive plan (including fiveyear action plan). 968.325 Annual submission of activities and expenditures. 968.330 PHA performance and evaluation report. 968.335 HUD review of PHA performance. Subpart D_Vacancy Reduction Program Sec. 968.416 Fund requisitions. 968.419 Grantee's oversight responsibilities. 968.422 Progress reports and completion schedule. 968.425 HUD review of grantee performance. 968.428 Program closeout. 968.435 Other program requirements. Authority: 42 U.S.C. 1437d, 1437l, and 3535(d). Source: 54 FR 52689, Dec. 21, 1989, unless otherwise noted.
24 CFR 968 Public Housing Modernization
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 497-535] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 968_PUBLIC HOUSING MODERNIZATION Subpart A_General 968.101 Purpose and applicability. 968.102 Special requirements for Turnkey III developments. 968.103 Allocation of funds under section 14. 968.104 Reserve for emergencies and disasters. 968.105 Definitions. 968.108 Displacement, relocation, and real property acquisition. 968.110 Other program requirements. 968.112 Eligible costs. 968.115 Modernization and energy conservation standards. 968.120 Force account. 968.125 Initiation of modernization activities. 968.130 Fund requisitions. 968.135 Contracting requirements. 968.140 On-site inspections. 968.145 Fiscal closeout. Subpart B_Comprehensive Improvement Assistance Program (For PHAs That Own or Operate Fewer Than 250 Units) 968.205 Definitions.
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Subpart A_General
Sec. 968.101 Purpose and applicability.
(a) Purpose. The purpose of this part is to set forth the policies and procedures for the Modernization program authorizing HUD to provide financial assistance to Public Housing Agencies (PHAs). (b) Applicability. (1) Subpart A of this part applies to all modernization under {[[Page 498]]} this part. Subpart B of this part sets forth the requirements and procedures for the Comprehensive Improvement Assistance Program (CIAP) for PHAs that own or operate fewer than 250 public housing units. Subpart C of this part sets forth the requirements and procedures for the Comprehensive Grant Program (CGP) for PHAs that own or operate 250 or more units. A PHA that qualifies for participation in the CGP is not eligible to participate in the CIAP. A PHA that has already qualified to participate in the CGP may elect to continue to participate in the CGP so long as it owns or operates at least 200 units. (2) This part applies to PHA-owned low-income public housing developments (including developments managed by a resident management corporation pursuant to a contract with the PHA); conveyed Lanham Act and Public Works Administration (PWA) developments; and to Section 23 Leased Housing Bond-Financed developments. Rental developments which are planned for conversion to homeownership under sections 5(h), 21, or 301 of the Act, but which have not yet been sold by a PHA, continue to qualify for assistance under this part. This part does not apply to developments under the Section 23 Leased Housing Non-Bond Financed program, the Section 10(c) Leased program, or the Section 23 or Section 8 Housing Assistance Payments programs. (3) A section 23 Leased Housing BondFinanced development is eligible for modernization only if HUD determines that
the development has met the following conditions: (i) The development was financed by the issuance of bonds; (ii) Clear title to the development will be conveyed to or vested in the PHA at the end of the section 23 lease term; (iii) There are no legal obstacles affecting the PHA's use of the property as public housing during the 20-year period of the modernization; (iv) After completion of the modernization, the development will have a remaining useful life of at least 20 years and it is in the financial interest of the Federal Government to improve the development; and (v) The development is covered by a cooperation agreement between the PHA and local governing body during the 20-year period of the modernization. (4) A section 23 Leased Housing BondFinanced development which has been conveyed to the PHA after the bonds have been retired is similarly eligible for modernization if the conditions specified under paragraph (b)(3) of this section have been satisfied. (5) A development/building/unit which is assisted under section 5(j)(2) of the Act (Major Reconstruction of Obsolete Projects) (MROP) is eligible for section 14 funding (CIAP or CGP) where it received MROP funding after FFY 1988 and has reached Date of Full Availability (DOFA) or where it received MROP funding during FFYs 1986-1988 and all MROP funds have been expended. (c) Transition. Any amount that HUD has approved for a PHA must be used for the purposes for which the funding was provided, or: (1) For a CGP PHA, for purposes consistent with an approved Annual Statement or Five-Year Action Plan submitted by the PHA, as the PHA determines to be appropriate; or (2) For a CIAP PHA, in accordance with a revised CIAP budget. (d) Approved information collections. The following sections of this subpart have
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development deficiencies. Notwithstanding the above requirement, a PHA may, with prior HUD approval, complete nonemergency physical improvements on any homeownership unit where the PHA demonstrates that, due to economies of scale or geographic constraints, substantial cost savings may be realized by completing all necessary work in a development at one time. [59 FR 44837, Aug. 30, 1994, as amended at 61 FR 8737, Mar. 5, 1996; 62 FR 27126, May 16, 1997; 64 FR 50229, Sept. 15, 1999]
been approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 and assigned OMB approval number 2577-0044: SEC. Sec. 968.135, 968.145, 968.210, 968.215, 968.225, and 968.230. The following sections of this subpart have been similarly approved and assigned approval number 2577.0157: SEC. Sec. 968.310, 968.315, 968.325, and 968.330. [57 FR 5570, Feb. 14, 1992, as amended at 58 FR 13930, Mar. 15, 1993; 61 FR 8737, Mar. 5, 1996]
Sec. 968.102 Special requirements for Turnkey III developments.
(a) Modernization Costs. Modernization work on a Turnkey III unit shall not increase the purchase price or amortization period of the home. (b) Eligibility of paid-off and conveyed units for assistance.--(1) Paid-off units. A Turnkey III unit that is paid off but {[[Page 499]]} has not been conveyed at the time the CIAP application or CGP Annual Submission is submitted, is eligible for any physical improvement under SEC. 968.112(d). (2) Conveyed units. Where modernization work has been approved before conveyance, the PHA may complete the work even if title to the unit is subsequently conveyed before the work is completed. However, once conveyed, the unit is not eligible for additional or future assistance. A PHA shall not use funds provided under this part for the purpose of modernizing units if the modernization work was not approved before conveyance of title. (c) Other. The homebuyer family must be in compliance with its financial obligations under its homebuyer agreement in order to be eligible for non-emergency physical improvements, with the exception of work necessary to meet statutory and regulatory requirements, (e.g., accessibility for persons with disabilities and lead-based paint activities) and the correction of
Sec. 968.103 Allocation of funds under section 14.
(a) General. This section describes the process for allocating modernization funds to the aggregate of PHAs and IHAs participating in the CIAP and to individual PHAs and IHAs participating in the CGP. (b) Set-aside for emergencies and disasters. For each FFY, HUD shall reserve from amounts approved in the appropriation act for grants under this part and part 950 of this title, an amount not to exceed $75 million (which shall include unused reserve amounts carried over from previous FFYs), which shall be made available to PHAs and IHAs for modernization needs resulting from natural and other disasters, and from emergencies. HUD shall replenish this reserve at the beginning of each FFY. Any unused funds from previous years may remain in the reserve until allocated. The requirements governing the reserve for disasters and emergencies and the procedures by which a PHA may request such funds, are set forth in SEC. 968.104. (c) Set-aside for credits for mod troubled PHAs under subpart C of this part. After deducting an amount for the reserve for natural and other disasters and for emergencies under paragraph (b) of this section, HUD shall set aside from the funds remaining no more than five percent for the purpose of providing credits to PHAs that were formerly designated as mod troubled agencies under the Public Housing
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Management Assessment Program (PHMAP) (see 24 CFR part 901). The purpose of this set-aside is to compensate these PHAs for amounts previously withheld by HUD because of a PHA's prior designation as a mod troubled agency. Since part 901 of this chapter does not apply to IHAs, they are not classified as ``mod troubled'' and they do not participate in the set-aside credits established under paragraph (c) of this section. (d) Formula allocation based on relative needs. After determining the amounts to be reserved under paragraphs (b) and (c) of this section, HUD shall allocate the amount remaining pursuant to the formula set forth in paragraphs (e) and (f) of this section, which is designed to measure the relative backlog and accrual needs of PHAs and IHAs.\1\ -------\1\ In construing all terms used in the statutory indicators for estimating backlog and accrual need, HUD shall use the meanings cited in Appendix B of the HUD Report to the Congress on Alternative Methods for Funding Public Housing Modernization (April 1990). Copies of the HUD Report to Congress may be obtained by contacting the HUD User at 1-800245-2691. -------(e) Allocation for backlog needs. HUD shall allocate half of the formula amount under paragraph (d) of this section based on the relative backlog needs of PHAs and IHAs, as follows: (1) Determination of backlog need: (i) Statistically reliable data are available. Where HUD determines that the {[[Page 500]]} data concerning the categories of backlog need identified under paragraph (e)(4) of this section are statistically reliable for individual IHAs and PHAs with 250 or more units, or for the aggregate of IHAs and PHAs with fewer than 250 units, which are not participating in the formula funding portion of the modernization program, it will base its allocation on direct estimates of the statutory categories of backlog need, based
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on the most recently available, statistically reliable data; (ii) Statistically reliable data are unavailable. Where HUD determines that statistically reliable data concerning the categories of backlog need identified under paragraph (e)(4) of this section are not available for individual PHAs and IHAs with 250 or more units, it will base its allocation of funds under this section on estimates of the categories of backlog need using: (A) The most recently available data on the categories of backlog need under paragraph (e)(4) of this section; (B) Objectively measurable data concerning the following PHA or IHA, community and development characteristics: (1) The average number of bedrooms in the units in a development. (Weighted at 2858.7); (2) The proportion of units in a development available for occupancy by very large families. (Weighted at 7295.7); (3) The extent to which units for families are in high-rise elevator developments. (Weighted at 5555.8); (4) The age of the developments, as determined by the DOFA date (date of full availability). In the case of acquired developments, HUD will use the DOFA date unless the PHA provides HUD with the actual date of construction, in which case HUD will use the actual date of construction (or, for scattered sites, the average dates of construction of all the buildings), subject to a 50 year cap. (Weighted at 206.5); (5) In the case of a large agency, the number of units with 2 or more bedrooms. (Weighted at .433); (6) The cost of rehabilitating property in the area. (Weighted at 27544.3); (7) For family developments, the extent of population decline in the unit of general local government determined on the basis of the 1970 and 1980 censuses. (Weighted at 759.5); (C) An equation constant of 1412.9. (2) Calibration of backlog need for developments constructed prior to 1985. The estimated backlog need, as determined under
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Major Reconstruction of Obsolete Public Housing, or HOPE VI programs for the units developed or modernized with funds received under this replacement housing factor; (D) A PHA that has been determined by HUD to be troubled or modtroubled that is not already under the direction of HUD or a courtappointed receiver, in accordance with part 901 of this chapter, must use an Alternative Management Entity as defined in SEC. 901.5 of this chapter for development of replacement housing and must comply with any applicable provisions of its Memorandum of Agreement executed with HUD under that part; and (E) Any development of replacement housing by any PHA must be done in accordance with part 941 of this chapter. (iii) If the PHA does not use the restored funding that results from the use of the replacement factor to provide replacement housing or renovate vacant units in a timely fashion, in accordance with SEC. 968.125 and SEC. 941.501 of this chapter, and make reasonable progress on such use of the funding, in accordance with SEC. 968.335(a)(3) and SEC. 941.501, HUD may require appropriate corrective action under SEC. 968.335 and SEC. 941.501; may recapture and reallocate the funds; or may use other remedies available to HUD. (4) Deduction for prior modernization: HUD shall deduct from the estimated backlog need, as determined under either paragraph (e)(1)(i) or (e)(1)(ii) of this section, amounts previously provided to a PHA or IHA for modernization, using one of the following methods: (i) Standard deduction for prior CIAP and MROP. HUD shall deduct 60 percent of the CIAP funds made available on a PHAwide or IHA-wide basis from FFY 1984 to 1991, and 40 percent of the funds made available on a development-specific basis for the Major Reconstruction of Obsolete Projects (MROP) (not to exceed the estimated formula need for the development), subject to a maximum fifty
either paragraph (e)(1)(i) or (e)(1)(ii) of this section, shall be adjusted upward for developments constructed prior to 1985 by a constant ratio of 1.5 to more accurately reflect the costs of modernizing the categories of backlog need under paragraph (e)(4) of this section for the public housing stock as of 1991. (3) Replacement factor to reflect backlog need for developments with demolition, disposition, or conversion occurring on or after October 1, 1996. (i) PHAs that have a reduction in units attributable to demolition, disposition, or conversion of units during the period (reflected in data maintained by HUD) that lowers the formula unit count for the Comprehensive Grant formula calculations qualify for application of a replacement housing factor, subject to satisfaction of criteria stated in paragraph (e)(3)(ii) of this section. The factor will be added, where applicable, for the first 5 years after such reduction, and consists of 50 percent of the published Total Development Cost for a two-bedroom unit in a walkup type structure for the period April 3, 1996 through April 30, 1997, multiplied times the number of units to be demolished, disposed of, or converted. The total relative backlog need of the PHA resulting from application of this replacement factor cannot exceed the share it would have had if the demolition, disposition, or conversion had not taken place. (ii) A PHA is eligible for application of this factor only if the PHA satisfies the following criteria: (A) The PHA requests the application of the replacement factor; (B) The restored funding that results from the use of the replacement factor is used to provide replacement housing (in any year in which replacement housing is an eligible activity) or accelerated renovation of vacant but viable units, in accordance with the PHA's five-year action plan, approved by HUD (see SEC. 968.315); {[[Page 501]]} (C) The PHA does not receive funding under the public housing development;
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percent deduction of a PHA's or IHA's total need for backlog funding; (ii) Newly constructed units. Units with a DOFA date of October 1, 1991 or thereafter will be considered to have a zero backlog; or (iii) Acquired developments. Developments acquired by a PHA with a DOFA date of October 1, 1991 or thereafter will be considered by HUD to have a zero backlog. (5) Categories of backlog need. The most recently available data used under either paragraph (e)(1)(i) or (e)(1)(ii) of this section must pertain to the following categories of backlog need: (i) Backlog of needed repairs and replacements of existing physical systems in public housing developments; (ii) Items that must be added to developments to meet HUD's modernization standards under SEC. 968.115, and State and local codes; and (iii) Items that are necessary or highly desirable for the long-term viability of a development, in accordance with HUD's modernization standards. (f) Allocation for accrual needs. HUD shall allocate the other half remaining under the formula allocation under paragraph (d) of this section based upon the relative accrual needs of PHAs and IHAs, determined as follows: (1) Statistically reliable data are available. Where HUD determines that statistically reliable data are available concerning the categories of need identified under paragraph (f)(3) of this section for individual PHAs and IHAs with 250 or more units, and for the aggregate of PHAs and IHAs with fewer than 250 units, it shall base its allocation of assistance under this section on the needs that are estimated to have accrued since the date of the last objective measurement of backlog needs under paragraph (e)(1)(i) of this section; (2) Statistically reliable data are unavailable. Where HUD determines that statistically reliable data concerning the categories of need identified under paragraph (f)(3) of this section are not
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available for individual PHAs and IHAs with 250 or more units, it shall base its allocation of assistance under this section on estimates of accrued need using: {[[Page 502]]} (i) The most recently available data on the categories of accrual need under paragraph (f)(3) of this section; (ii) Objectively measurable data concerning the following PHA or IHA, community, and development characteristics: (A) The average number of bedrooms in the units in a development. (Weighted at 100.1); (B) The proportion of units in a development available for occupancy by very large families. (Weighted at 356.7); (C) The age of the developments. (Weighted 10.4); (D) The extent to which the buildings in developments of an agency average fewer than 5 units. (Weighted at 87.1); (E) The cost of rehabilitating property in the area. (Weighted at 679.1); (F) The total number of units of each PHA or IHA that owns or operates 250 or more units. (weighted at .0144); (iii) An equation constant of 602.1. (3) Categories of need. The data to be provided under either paragraph (f)(1) or (2) of this section must pertain to the following categories of need: (i) Backlog of needed repairs and replacements of existing physical systems in public housing developments; and (ii) Items that must be added to developments to meet HUD's modernization standards under SEC. 968.115, and State and local codes. (4) Replacement factor to reflect accrual need for developments with demolition, disposition, or conversion occurring on or after October 1, 1996. (i) PHAs that have a reduction in units attributable to demolition, disposition, or conversion of units during the period (reflected in data maintained by HUD) that lowers the formula unit count for the Comprehensive Grant formula calculations qualify for application of a replacement
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(iii) If the PHA does not use the restored funding that results from the use of the replacement factor to provide replacement housing or renovate vacant units in a timely fashion, in accordance with SEC. 968.125 and SEC. 941.501 of this chapter, and make reasonable progress on such use of the funding, in accordance with SEC. 968.335(a)(3) and SEC. 941.501, HUD may require appropriate corrective action under SEC. 968.335 and SEC. 941.501; may recapture and reallocate the funds; or may use other remedies available to HUD. (g) Allocation of CIAP. The formula amount determined under paragraphs (e) and (f) of this section for PHAs and {[[Page 503]]} IHAs with fewer than 250 units shall be allocated to PHAs in accordance with the requirements of subpart B of this part (the CIAP), and to IHAs in accordance with the requirements of 24 CFR part 950, subpart I. (h) Allocation for CGP. The formula amount determined under paragraphs (e) and (f) of this section for PHAs with 250 or more units shall be allocated in accordance with the requirements of subpart C of this part (the CGP), and for IHAs in accordance with the requirements of 24 CFR part 950, subpart I. A PHA that is eligible to receive a grant under the CGP may appeal the amount of its formula allocation in accordance with the requirements set forth in SEC. 968.310(b). A PHA that is eligible to receive modernization funds under the CGP because it owns or operates 250 or more units is disqualified from receiving assistance under the CIAP under this part. (i) Use of formula allocation. Any amounts allocated to a PHA under paragraphs (e) and (f) of this section may be used for any eligible activity under this part, notwithstanding that the allocation amount is determined by allocating half based on the relative backlog needs and half based on the relative accrual needs of PHAs and IHAs. (j) Calculation of number of units. For purposes of determining under this section the number of units owned or operated by a PHA or IHA, and the relative modernization
housing factor, subject to satisfaction of criteria stated in paragraph (f)(4)(ii) of this section. The factor will be added, where applicable, for the first five years after such reduction, and consists of two percent of the published Total Development Cost for a two-bedroom unit in a walkup type structure for the period April 3, 1996 through April 30, 1997, multiplied times the number of units to be demolished, disposed of, or converted. The total relative accrual need of the PHA resulting from application of this replacement factor cannot exceed the share it would have had if the demolition, disposition, or conversion had not taken place. (ii) A PHA is eligible for application of this factor only if the PHA satisfies the following criteria: (A) The PHA requests the application of the replacement factor; (B) The restored funding that results from the use of the replacement factor is used to provide replacement housing (in any year in which replacement housing is an eligible activity) or accelerated renovation of vacant but viable units, in accordance with the PHA's five-year action plan, approved by HUD (see SEC. 968.315); (C) The PHA does not receive funding under the public housing development, Major Reconstruction of Obsolete Public Housing, or HOPE VI programs for the units developed or modernized with funding received under this replacement housing factor; (D) A PHA that has been determined by HUD to be troubled or modtroubled, in accordance with part 901 of this chapter that is not already under the direction of HUD or a court-appointed receiver, must use an Alternative Management Entity as defined in SEC. 901.5 of this chapter for development of replacement housing and must comply with any applicable provisions of its Memorandum of Agreement executed with HUD under that part; and (E) Any development of replacement housing by any PHA must be done in accordance with part 941 of this chapter.
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needs of PHAs and IHAs, HUD shall count as one unit each existing rental and section 23 bond-financed unit under the ACC, except that it shall count as one-fourth of a unit each existing unit under the Turnkey III program. In addition, HUD shall count as one unit each existing unit under the Mutual Help program. New development units that are added to an PHA's or IHA's inventory will be added to the overall unit count so long as they are under ACC amendment and have reached DOFA by the first day in the FFY in which the formula is being run. Any increase in units (reaching DOFA and under ACC amendment) as of the beginning of the FFY shall result in an adjustment upwards in the number of units under the formula. New units reaching DOFA after this date will be counted for formula purposes as of the following FFY. (k) Demolition, disposition and conversion of units--(1) General. Where an existing unit under an ACC is demolished, disposed of, or converted into a larger or smaller unit, including the substantial rehabilitation of a Mutual Help or Turnkey III unit, HUD shall not adjust the amount the PHA or IHA receives under the formula, unless more than one percent of the units are affected on a cumulative basis. Where more than one percent of the existing units are demolished, disposed of, or converted, HUD shall reduce the formula amount for the PHA or IHA over a 3-year period to reflect removal of the units from the ACC; (2) Determination of one percent cap. In determining whether more than one percent of the units are affected on a cumulative basis, HUD will compare the units eligible for funding in the initial year under formula funding with the number of units eligible for funding for formula funding purposes for the current year, and shall base its calculations on the following: (i) Increases in the number of units resulting from the conversion of existing units will be added to the overall unit count so long as they are under ACC amendment by the first day in the FFY in which the formula is being run;
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(ii) Units which are lost as a result of demolition, disposition or conversion shall not be offset against units subsequently added to a PHA's or IHA's inventory; (iii) For purposes of calculating the number of converted units, HUD shall regard the converted size of the unit as the appropriate unit count (e.g., a unit that originally was counted as one unit under paragraph (j) of this section, but which later was converted into two units, shall be counted as two units under the ACC). (3) Phased-in reduction of units. (i) Reduction less than one percent. If HUD determines that the reduction in units under paragraph (k)(2) of this section is less than one percent, the PHA or IHA will be funded as though no change had occurred; (ii) Reduction greater than one percent. If HUD determines that the reduction in units under paragraph (k)(2) of this {[[Page 504]]} section is greater than one percent, the number of units on which formula funding is based will be the number of units reported as eligible for funding for the current program, plus two thirds of the difference between the initial year and the current year in the first year, plus one third of the difference in the second year, and at the level of the current year in the third year; (iii) Exception. A unit which is conveyed under the Mutual Help or Turnkey III programs will result in an automatic (rather than a phasedin) reduction in the unit count. Paid-off Mutual Help or Turnkey III units continue to be counted until they are conveyed. (4) Subsequent reductions in unit count. (i) Once a PHA's or IHA's unit count has been fully reduced under paragraph (k)(3)(ii) of this section to reflect the new number of units under the ACC, this new number of units will serve as the base for purposes of calculating whether there has been a one percent reduction in units on a cumulative basis; (ii) A reduction in formula funding, based upon additional reductions to the number of a PHA's or IHA's units, will also
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(3) Repayment. A CGP PHA that receives assistance for its emergency needs from the reserve under SEC. 968.103(b) must repay such assistance from its future allocations of assistance, where available. For CGP PHAs, HUD shall deduct up to 50 percent of a PHA's succeeding year's formula allocation under SEC. 968.103 (e) and (f) to repay emergency funds previously provided by HUD to the PHA. The remaining balance, if any, shall be deducted from a PHA's succeeding years' formula allocations. A CIAP PHA is not required to repay assistance for its emergency needs from the reserve. (b) Natural and other disasters--(1) Eligibility for assistance. A PHA (including a PHA that has been designated as mod troubled under PHMAP) may request assistance at any time from the reserve established under SEC. 968.103(b) for the purpose of permitting the PHA to address a natural or other disaster. To qualify for assistance, the disaster must pertain to an extraordinary event affecting only one or a few PHAs, such as an earthquake or hurricane. Any disaster declared by the President (or which HUD determines would qualify for a Presidential declaration if it were {[[Page 505]]} on a larger scale) qualifies for assistance under this paragraph. A PHA may receive funds from the reserve regardless of the availability of other modernization funds or reserves, but only to the extent that its needs are in excess of its insurance coverage or other Federal assistance. A CGP PHA is not required to have an approved comprehensive plan under SEC. 968.315 before it can request assistance from the reserve under SEC. 968.103(b); (2) Procedure. To obtain funding for natural or other disasters under SEC. 968.103(b), a PHA must submit a request, in a form to be prescribed by HUD, which demonstrates that the PHA meets the requirements of paragraph (b)(1) of this section. HUD will immediately process a request for such assistance and, if it determines that the request meets the requirements under paragraph (b)(1) of this
be phased in over a three-year period, as described in paragraph (k)(2) of this section. [57 FR 5571, Feb. 14, 1992, as amended at 59 FR 30477, June 13, 1994; 59 FR 44837, Aug. 30, 1994; 61 FR 8737, Mar. 5, 1996; 63 FR 46107, Aug. 28, 1998]
Sec. 968.104 Reserve for emergencies and disasters.
(a) Emergencies--(1) Eligibility for assistance. A PHA (including a PHA that has been designated as mod troubled under PHMAP) may obtain funds at any time, for any eligible emergency work item as defined in SEC. 968.305 (for CGP PHAs) or for any eligible emergency work item (described as emergency modernization in SEC. 968.205) (for CIAP PHAs), from the reserve established under SEC. 968.103(b). However, emergency reserve funds may not be provided to a CGP PHA that has the necessary funds available from any other source, including its annual formula allocation under SEC. 968.103 (e) and (f), other unobligated modernization funds, and its replacement reserves. A PHA is not required to have an approved comprehensive plan under SEC. 968.315 before it can request emergency assistance from this reserve. Emergency reserve funds may not be provided to a CIAP PHA unless it does not have the necessary funds available from any other source, including unobligated CIAP, and no CIAP modernization funding is available from HUD for the remainder of the fiscal year. (2) Procedure. To obtain emergency funds, a PHA must submit a request, in a form to be prescribed by HUD, which demonstrates that without the requested funds from the set-aside, the PHA does not have adequate funds available to correct the conditions which present an immediate threat to the health or safety of the residents. HUD will immediately process a request for such assistance and, if it determines that the PHA's request meets the requirements under paragraph (a)(1) of this section, it shall approve the request, subject to the availability of funds in the reserve;
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section, it shall approve the request, subject to the availability of funds in the reserve; (3) Repayment. Funds provided to a PHA under SEC. 968.103(b) for natural and other disasters are not required to be repaid. [57 FR 5575, Feb. 14, 1992, as amended at 59 FR 44838, Aug. 30, 1994. Redesignated and amended at 61 FR 8738, Mar. 5, 1996]
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Sec. 968.105 Definitions.
The terms HUD and Public Housing Agency (PHA) are defined in 24 CFR part 5. Act. The United States Housing Act of 1937, as amended, (42 U.S.C. 1437 et seq.). Annual contributions contract (ACC). A contract under the Act between HUD and the PHA containing the terms and conditions under which the Department assists the PHA in providing decent, safe, and sanitary housing for low-income families. The ACC must be in a form prescribed by HUD under which HUD agrees to provide assistance in the development, modernization, and/or operation of a low-income housing project under the Act, and the PHA agrees to develop, modernize, and operate the project in compliance with all provisions of the ACC and the Act, and all HUD regulations and implementing requirements and procedures. CGP. The Comprehensive Grant Program, which provides modernization funds on a formula basis to PHAs with 250 or more public housing units. CIAP. The Comprehensive Improvement Assistance Program, which provides modernization funds on a competitive basis to PHAs with fewer than 250 public housing units. Development. The term development has the same meaning as that provided for low-income housing project, as that term is defined in section 3(b)(1) of the Act. FFY. Federal fiscal year. Force account labor. Labor employed directly by the PHA on either a permanent or a temporary basis. See SEC. 968.120. Hard costs. The physical improvement costs in development accounts 1450 through
1475 of the Low-Rent Housing Accounting Handbook 7510.1, as revised, which include: Account 1450 Site Improvements; Account 1460 Dwelling Structures; Account 1465.1 Dwelling Equipment-Nonexpendable; Account 1470 Nondwelling Structures; and Account 1475 Nondwelling Equipment. Homebuyer agreement. A Turnkey III Homebuyer Ownership Opportunity Agreement. Modernization funds. Funds derived from an allocation of budget authority for the purpose of funding physical and management improvements. Modernization program. A PHA's program for carrying out modernization, as set forth in the approved CIAP budget or CGP Annual Statement. Modernization project. The improvement of one or more existing public housing developments under a unique number designated for that modernization program. For each modernization project, HUD and the PHA shall enter into an ACC amendment, requiring low-income use of the housing for not less than 20 years from the date of the ACC amendment (subject to sale of homeownership units in accordance with the terms of the ACC). The terms ``modernization project number'' and ``comprehensive grant number'' are used interchangeably. Non-routine maintenance. Work items that ordinarily would be performed on a regular basis in the course of upkeep of property, but have become substantial in scope because they have been put off, and involve expenditures that would otherwise materially distort the {[[Page 506]]} level trend of maintenance expenses. Replacement of equipment and materials rendered unsatisfactory because of normal wear and tear by items of substantially the same kind does qualify, but reconstruction, substantial improvement in the quality or kind of original equipment and materials, or remodeling that alters the nature or type of housing units does not qualify. Partnership process. A specific and ongoing process that is designed to ensure
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connection with the temporary relocation, including the cost of moving to and from the temporary housing and any increase in monthly rent/utility costs; and (2) Appropriate advisory services, including reasonable advance written notice of: (i) The date and approximate duration of the temporary relocation; (ii) The location of the suitable, decent, safe, and sanitary housing to be made available for the temporary period; (iii) The terms and conditions under which the resident may lease and occupy a suitable, decent, safe, and sanitary dwelling in the building/complex following completion of the project; and (iv) The provisions of paragraph (b)(1) of this section. (c) Relocation assistance for displaced persons. A ``displaced person'' (defined in paragraph (g) of this section) must be provided relocation assistance at the levels described in, and in accordance with the requirements of, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA) (42 U.S.C. 4601-4655) and implementing regulations at 49 CFR part 24. A ``displaced person'' shall be advised of his/her rights under the Fair Housing Act (42 U.S.C. 3601-19), and, if the representative comparable replacement dwelling used to establish the amount of the replacement housing payment to be provided to a minority person is located in an area of minority concentration, such person also shall be given, if possible, referrals to comparable and suitable, decent, safe, and sanitary replacement dwellings not located in such areas. (d) Real property acquisition requirements. The acquisition of real property for a development is subject to the URA and the requirements described in 49 CFR part 24, subpart B. (e) Appeals. A person who disagrees with the PHA's determination concerning whether the person qualifies as a ``displaced person,'' or the amount of the relocation assistance for which the {[[Page 507]]}
that residents, resident groups, and the PHA work in a cooperative and collaborative manner to develop, implement and monitor the CIAP or CGP. At a minimum, a PHA shall ensure that the partnership process incorporates full resident participation in each of the required program components. PHMAP. The Public Housing Management Assessment Program (PHMAP) is a process designed to allow HUD and the PHA to identify PHA management capabilities and deficiencies, and to lead to overall better management of the public housing program, in accordance with 24 CFR part 901. Reasonable cost. Total unfunded hard cost needs for a development that do not exceed 90 percent of the computed Total Development Cost (TDC) for a new development with the same structure type and number and size of units in the market area. Soft costs. The non-physical improvement costs which exclude any costs in development accounts 1450 through 1475. [54 FR 52689, Dec. 21, 1989, as amended at 56 FR 922, Jan. 9, 1991; 57 FR 5573, Feb. 14, 1992; 58 FR 13931, Mar. 15, 1993; 61 FR 5216, Feb. 9, 1996; 61 FR 8738, Mar. 5, 1996]
Sec. 968.108 Displacement, relocation, and real property acquisition.
(a) Minimizing displacement. Consistent with the other goals and objectives of this part, PHAs must assure that they have taken all reasonable steps to minimize the displacement of persons (families, individuals, businesses, nonprofit organizations, and farms) as a result of a project assisted under this part. (b) Temporary relocation. Residents who will not be required to move permanently, but who must relocate temporarily (e.g., to permit rehabilitation), shall be provided: (1) Reimbursement for all reasonable out-of-pocket expenses incurred in
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person is eligible, may file a written appeal of that determination with the PHA. A lower-income person who is dissatisfied with the PHA's determination on his or her appeal may submit a written request for review of that determination to the HUD Field Office. (f) Responsibility of PHA. (1) The PHA shall certify that it will comply (i.e., provide assurance of compliance, as required by 49 CFR part 24) with the URA, the regulations at 49 CFR part 24, and the requirements of this section and shall ensure such compliance, notwithstanding any third party's contractual obligation to the PHA to comply with these provisions. (2) The PHA shall maintain records in sufficient detail to demonstrate compliance with these provisions. The PHA shall maintain data on the race, ethnic, gender, and handicap status of displaced persons. (g) Definition of displaced person. (1) For purposes of this section, the term displaced person means a person (family, individual, business, nonprofit organization, or farm) that moves from real property, or moves personal property from real property, permanently, as a direct result of acquisition, rehabilitation, or demolition for a project assisted under this part. This includes any permanent, involuntary move for an assisted project, including any permanent move from the building/complex that is made: (i) On or after the date of the ``initiation of negotiations'' (defined in SEC. 968.108(h)), if the person is the resident of a dwelling and any one of the following three situations occurs: (A) The resident has not been provided, before the move, a written notice offering the resident the opportunity to lease and occupy a suitable, decent, safe, and sanitary dwelling in the same building/ complex upon completion of the project under reasonable terms and conditions. Such reasonable terms and conditions include a monthly rent and estimated average monthly utility costs that do not exceed the total tenant payment, as determined under 24 CFR 913.107; or
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(B) The resident is required to relocate temporarily, does not return to the building/complex, and either: (1) The resident is not offered payment for all reasonable out-ofpocket expenses incurred in connection with the temporary relocation, or (2) Other conditions of the temporary relocation are not reasonable; or (C) The resident is required to move to another dwelling unit in the same building/complex but is not offered reimbursement for all reasonable out-ofpocket expenses incurred in connection with the move, or other conditions of the move are not reasonable; or (ii) Before the ``initiation of negotiations,'' if the PHA or HUD determines that the displacement resulted directly from acquisition, rehabilitation, or demolition for the assisted project; (2) Notwithstanding the provisions of paragraph (g)(1) of this section, a person does not qualify as a ``displaced person'' (and is not eligible for relocation assistance under the URA or this section), if: (i) The person has been evicted for serious or repeated violation of the terms and conditions of the lease or occupancy agreement, violation of applicable Federal, State or local law, or other good cause, and the PHA determines that the eviction was not undertaken for the purpose of evading the obligation to provide relocation assistance; (ii) The person moved into the property after the submission of the Annual Statement (CGP) or application (CIAP) and, before signing a lease and commencing occupancy, was provided written notice of the project, its possible impact on the person (e.g., that the person may be displaced or temporarily relocated) and the fact that he or she would not qualify as a ``displaced person'' (or for assistance under this section) as a result of the project; (iii) The person is ineligible under 49 CFR 24.2(g)(2); or (iv) HUD determines that the person was not displaced as a direct result of
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special flood hazards, unless the following conditions are met: (1) Flood insurance on the building is obtained in compliance with section 102(a) of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et seq.); and (2) The community in which the area is situated is participating in the National Flood Insurance Program in accord with 44 CFR parts 59-79, or less than one year has passed since FEMA notification regarding flood hazards. (e) Wage rates. (1) Davis-Bacon. With respect to modernization work or contracts over $2,000 (except for nonroutine maintenance work), all laborers and mechanics (other than volunteers under the conditions set out in 24 CFR part 70) who are employed by the PHA or its contractors shall be paid not less than the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C. 276a-276a-5). (2) HUD-determined. With respect to all nonroutine maintenance work or contracts, all laborers and mechanics (other than volunteers under the conditions set out in 24 CFR part 70) who are employed by the PHA or its contractors shall be paid not less than the wages prevailing in the locality, as determined or adopted by HUD pursuant to section 12 of the United States Housing Act of 1937. (3) State. Prevailing wage rates determined under State law are inapplicable under the circumstances set forth in SEC. 965.101 of this chapter. (f) Technical wage rates. All architects, technical engineers, draftsmen and technicians (other than volunteers under the conditions set out in 24 CFR part 70) who are employed in the development of a project shall be paid not less than the wages prevailing in the locality, as determined or adopted (subsequent to a determination under applicable State or local law) by HUD. (g)-(j) [Reserved] (k) Lead-based paint poisoning prevention. The PHA shall comply with the relevant requirements of the Lead-Based
acquisition, rehabilitation, or demolition for the project. (3) The PHA may ask HUD, at any time, to determine whether a displacement is or would be covered by this section. (h) Definition of initiation of negotiations. For purposes of determining the formula for computing the replacement housing assistance to be provided to a {[[Page 508]]} resident who is displaced by rehabilitation or demolition, the term initiation of negotiations means 45 calendar days before (1) the issuance of the invitation for bids for the project or (2) the start of force account work, whichever is applicable. (Approved by the Office of Management and Budget under OMB Control Number 2506-0121) [58 FR 13931, Mar. 15, 1993, as amended at 61 FR 8738, Mar. 5, 1996]
Sec. 968.110 Other program requirements.
In addition to the Federal requirements set forth in 24 CFR part 5, the PHA shall comply with the following program requirements: (a) Nondiscrimination and equal opportunity. The PHA shall comply with Title II of the Americans with Disabilities Act and 28 CFR part 35; section 504 of the Rehabilitation Act of 1973 and 41 CFR part 60-471; and the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157) and 24 CFR part 40. (b) [Reserved] (c) Environmental clearance. Before approving a proposed project, HUD will comply with the requirements of 24 CFR part 50, implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4332 et seq.) and related requirements of 24 CFR 50.4. (d) Flood insurance. HUD will not approve for acquisition, construction, or improvement, a building located in an area that has been identified by the Federal Emergency Management Agency as having
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Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing regulations at part 35, subparts A, B, L, and R of this title. (l) [Reserved] (m) Coastal barriers. In accordance with the Coastal Barriers Resources Act, 16 U.S.C. 3501, no financial assistance under this part may be made available within the Coastal Barrier Resources System. [54 FR 52689, Dec. 21, 1989, as amended at 56 FR 922, Jan. 9, 1991; 56 FR 15175, Apr. 15, 1991; 57 FR 5573, Feb. 14, 1992; 57 FR 14761, Apr. 22, 1992; 58 FR 13932, Mar. 15, 1993; 61 FR 5216, Feb. 9, 1996; 61 FR 8738, Mar. 5, 1996; 64 FR 33637, June 23, 1999; 64 FR 50229, Sept. 15, 1999]
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Sec. 968.112 Eligible costs.
(a) General. A PHA may use financial assistance received under this part for the following eligible costs: (1) For a CGP PHA, the eligible costs are: {[[Page 509]]} (i) Undertaking activities described in its approved Annual Statement under SEC. 968.325 and approved Five-Year Action Plan under SEC. 968.315(e)(5); (ii) Carrying out emergency work, whether or not the need is indicated in the PHA's approved Comprehensive Plan, including Five-Year Action Plan, or Annual Statement; (iii) Funding a replacement reserve to carry out eligible activities in future years, subject to the restrictions set forth in paragraph (f) of this section; (iv) Preparing the Comprehensive Plan and Five-Year Action Plan under SEC. 968.315 and the Annual Submission under SEC. 968.325, including reasonable costs necessary to assist residents to participate in a meaningful way in the planning, implementation and monitoring process; and (v) Carrying out an audit, in accordance with 24 CFR part 44.
(2) For a CIAP PHA, the eligible costs are activities approved by HUD and included in an approved CIAP budget. (b) Demonstration of viability. Except in the case of emergency work, a PHA shall only expend funds on a development for which the PHA has determined, and HUD agrees, that the completion of the improvements and replacements (for CGP PHAs, as identified in the Comprehensive Plan) will reasonably ensure the long-term physical and social viability of the development at a reasonable cost (as defined in SEC. 968.105), or for essential nonroutine maintenance needed to keep the property habitable until the demolition or disposition application is approved and residents are relocated. (c) Physical improvements. Eligible costs include alterations, betterments, additions, replacements, and non-routine maintenance that are necessary to meet the modernization and energy conservation standards prescribed in SEC. 968.115. These mandatory standards may be exceeded when a PHA (and HUD in the case of CIAP PHAs) determines that it is necessary or highly desirable for the long-term physical and social viability of the individual development. Development specific work includes work items that are modest in design and cost, but still blend in with the design and architecture of the surrounding community by including amenities, quality materials and design and landscaping features that are customary for the locality and culture. The Field Office has the authority to approve nondwelling space where such space is needed to administer, and is of direct benefit to, the public housing program. If demolition or disposition is proposed, a PHA shall comply with 24 CFR part 970. Additional dwelling space may be added to existing units. (d) Turnkey III developments. (1) General. Eligible physical improvement costs for existing Turnkey III developments are limited to work items that are not the responsibility of the homebuyer families and that are related to health and safety, correction of development deficiencies,
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CFR part 970, and related costs, such as clearing and grading the site after demolition and subsequent site improvement to benefit the remaining portion of the existing development; and (2) Conversion of existing dwelling units to different bedroom sizes or to nondwelling use. (f) Replacement reserve costs (for CGP only). (1) Funding a replacement reserve to carry out eligible activities in future years is an eligible cost, subject to the following restrictions: (i) Annual CGP funds are not needed for existing needs, as identified by the PHA in its needs assessments; or (ii) A physical improvement requires more funds than the PHA would receive under its annual formula allocation; or (iii) A management improvement requires more funds than the PHA may use under its 20% limit for management improvements (except as provided in paragraph (n)(2)(i) of this section), and the PHA needs to save a portion of its annual grant, in order to combine it with a portion of subsequent year(s) grants to fund the work item. (2) The PHA shall invest replacement reserve funds so as to generate a return equal to or greater than the average 91-day Treasury bill rate. (3) Interest earned on funds in the replacement reserve will not be added to the PHA's income in the determination of a PHA's operating subsidy eligibility, but must be used for eligible modernization costs. (4) To the extent that its annual formula allocation and any unobligated balances of modernization funds are not adequate to meet emergency needs, a PHA must first use its replacement reserve, where funded, to meet emergency needs, before requesting funds from the reserve under SEC. 968.104. Use of the replacement reserve is not required for emergencies if the amount that otherwise would be used from that reserve is an accumulation from application of the replacement housing factor (SEC. 968.103(e) (3) and (f)(4)) that is necessary
physical accessibility, energy audits and cost-effective energy conservation measures, or LBP testing, interim containment, professional risk assessment and abatement. In addition, management improvements are eligible costs. (2) Ineligible costs. Routine maintenance or replacements, and items that are the responsibility of the homebuyer families are ineligible costs. (3) Exception for vacant or nonhomebuyer-occupied Turnkey III units. (i) Notwithstanding the requirements of paragraph (d)(1) of this section, a PHA may substantially rehabilitate a Turnkey III unit whenever the unit becomes vacant or is occupied by a non-homebuyer family in order to return the unit to the inventory or make the unit suitable for homeownership purposes. A PHA that intends to use funds under this paragraph must identify in its CIAP application or CGP annual submission the estimated number of units proposed for substantial rehabilitation and subsequent sale. In addition, a PHA must demonstrate, for each of the Turnkey III units proposed to be substantially rehabilitated, that it has homebuyers who both are eligible for homeownership, in accordance with the requirements of 24 CFR part 904, and have demonstrated their intent to be placed into the unit. (ii) Before a PHA may be approved for substantial rehabilitation of a unit {[[Page 510]]} under this paragraph, it must first deplete any Earned Home Payments Account (EHPA) or Non-Routine Maintenance Reserve (NRMR) pertaining to the unit, and request the maximum amount of operating subsidy. Any increase in the value of a unit caused by its substantial rehabilitation under this paragraph shall be reflected solely by its subsequent appraised value, and not by an automatic increase in its selling price. (e) Demolition and conversion costs. Eligible costs include: (1) Demolition of dwelling units or non-dwelling facilities, where the demolition is approved by HUD under 24
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so that replacement housing can be provided efficiently and effectively. (5) A PHA is not required to use its replacement reserve for costs related to natural and other disasters. (g) Management improvement costs. (1) General. Management improvements that are development-specific or PHA-wide in nature are eligible costs where needed to upgrade the operation of the PHA's developments, sustain physical improvements at those developments or correct management deficiencies. A PHA's ongoing operating expenses are ineligible management improvement costs. For CIAP PHAs, management improvements may be funded as a single work item. (2) Eligible costs. Eligible costs include: (i) General management improvement costs. Eligible costs include general management improvement costs, such as: management, financial, and accounting control systems of the PHA; adequacy and qualifications of PHA personnel, including training; resident programs and services through the coordination of the provision of social services from tribal or local government or other public and private entities; resident and development security; resident selection and eviction; occupancy; rent collection; maintenance; and equal opportunity. (ii) Economic development costs. Eligible costs include job training for residents and resident business development activities, for the purpose of carrying out activities related to the modernizationfunded management and physical improvements. HUD encourages PHAs, to the greatest extent feasible, to hire residents as trainees, apprentices, or employees to carry out {[[Page 511]]} the modernization program under this part, and to contract with resident-owned businesses for modernization work. (iii) Resident management costs. Eligible costs include technical assistance to a resident council or resident management corporation (RMC), as defined in part 964, in order to: determine the feasibility of
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resident management to carry out management functions for a specific development or developments; train residents in skills directly related to the operations and management of the development(s) for potential employment by the RMC; train RMC board members in community organization, board development, and leadership; and assist in the formation of an RMC. (iv) Resident homeownership costs. Eligible costs are limited to the study of the feasibility of converting rental to homeownership units and the preparation of an application for conversion to homeownership or sale of units. (v) Preventive maintenance system. Eligible costs include the establishment of a preventive maintenance system or improvement of an existing system. A preventive maintenance system must provide for regular inspections of building structures, systems and units and distinguish between work eligible for operating funds (routine maintenance) and work eligible for modernization funding (non-routine maintenance). (h) Drug elimination costs. Eligible costs include drug elimination activities involving management or physical improvements, as specified by HUD. (i) Lead-based paint costs. Eligible costs include lead-based paint activities, such as insurance coverage and cleanup and disposal, in accordance with part 35 of this title. (j) Administrative costs. Administrative costs necessary for the planning, design, implementation and monitoring of the physical and management improvements are eligible costs and include the following: (1) Salaries. The salaries of nontechnical and technical PHA personnel assigned full-time or part-time to modernization are eligible costs only where the scope and volume of the work are beyond that which could be reasonably expected to be accomplished by such personnel in the performance of their nonmodernization duties. A PHA shall properly apportion to the appropriate program budget
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the CIAP application and which are related to developing the CIAP application or carrying out eligible modernization planning, such as detailed design work, preparation of solicitations, and LBP professional risk assessment and testing. Planning costs may be funded as a single work item. If a PHA incurs planning costs without prior HUD approval, a PHA does so with the full understanding that the costs may not be reimbursed upon approval of the CIAP application. Planning costs shall not exceed 5 percent of the CIAP funds available to a Field Office in a particular FFY. (2) CGP costs. (i) Management improvement costs. Notwithstanding the full fungibility of work items, a PHA shall not use more than a total of 20 percent of its annual grant for management improvement costs in account 1408, unless specifically approved by HUD or the PHA has been designated as both an over-all high performer and mod-high performer under the PHMAP. (ii) Administrative costs. Notwithstanding the full fungibility of work items, a PHA shall not use more than a total of 10 percent of its annual grant on administrative costs in account 1410, excluding any costs related to lead-based paint or asbestos testing (whether conducted by force account employees or by a contractor), in-house architectural/ engineering (A/E) work, or other special administrative costs required by State or local law, unless specifically approved by HUD. (3) Program benefit. Where the physical or management improvement, including administrative cost, will benefit programs other than Public Housing, such as Section 8 or local revitalization programs, eligible costs are limited to the amount directly attributable to the public housing program. (4) No duplication. Any eligible cost for an activity funded by CIAP or CGP shall not also be funded by any other HUD program.
any direct charges for the salaries of assigned full- or part-time staff (e.g., to the CIAP, CGP or operating budget); (2) Employee benefit contributions. PHA contributions to employee benefit plans on behalf of non-technical and technical PHA personnel are eligible costs in direct proportion to the amount of salary charged to the CIAP or CGP, as appropriate; (3) Preparation of CIAP or CGP required documents; (4) Resident participation. Eligible costs include those associated with ensuring the meaningful participation of residents in the development of the CIAP Application or the CGP Annual Submission and Comprehensive Plan and the implementation and monitoring of the approved modernization program; and (5) Other administrative costs, such as telephone and facsimile, as specified by HUD. (k) Audit costs (CGP only). Eligible costs are limited to the portion of the audit costs that are attributable to the modernization program. (l) Architectural/engineering and consultant fees. Eligible costs include fees for planning, identification of needs, detailed design work, preparation of construction and bid documents and other required documents, LBP professional risk assessments and testing, and inspection of work in progress. (m) Relocation costs. Eligible costs include relocation and other assistance for permanent and temporary relocation, as a direct result of rehabilitation, demolition or acquisition for a modernization-funded activity, where this assistance is required by 49 CFR part 24 or SEC. 968.108. (n) Cost limitations. (1) CIAP costs. (i) Management improvement costs. Management improvement costs shall not exceed a percentage of the CIAP funds available to a Field Office in a particular FFY, as specified by HUD. (ii) Planning costs. Planning costs are costs incurred before HUD approval of {[[Page 512]]}
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(o) Ineligible costs. Ineligible costs include: (1) Luxury improvements; (2) Indirect administrative costs (overhead), as defined in OMB Circular A87; (3) Public housing operating assistance; (4) Direct provision of social services, through either force account or contract labor, from FFY 1996 and future FFYs funds, unless otherwise provided by law; and (5) Other ineligible activities, as specified by HUD. (p) Expanded eligibility for FFY 1995 and prior year modernization funds. The FFY 1995 Rescissions Act expanded the eligible activities that may be funded with CIAP or CGP assistance provided from FFY 1995 and prior FFY funds. Such activities include, but are not limited to: (1) New construction or acquisition of additional public housing units, including replacement units; (2) Modernization activities related to the public housing portion of housing developments held in partnership, or cooperation with nonpublic housing entities; and (3) Other activities related to public housing, including activities eligible under the Urban Revitalization Demonstration (HOPE VI). [61 FR 8738, Mar. 5, 1996, as amended at 62 FR 27126, May 16, 1997; 63 FR 46108, Aug. 28, 1998; 64 FR 50229, Sept. 15, 1999]
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analysis, reflecting installation and operating costs; and (d) Provide decent, safe, and sanitary living conditions in PHAowned and PHA-operated public housing. [61 FR 8740, Mar. 5, 1996]
Sec. 968.120 Force account.
(a) For both CIAP and CGP, a PHA may undertake the activities using force account labor, only where specifically approved by HUD in the CIAP budget or CGP Annual Statement, except no prior HUD approval is required where the PHA is designated as both an {[[Page 513]]} overall high performer and Modernization high performer under the PHMAP. (b) If the entirety of modernization activity (including the planning and architectural design of the rehabilitation) is administered by the RMC, the PHA shall not retain for any administrative or other reason, any portion of the modernization funds provided, unless the PHA and the RMC provide otherwise by contract. [61 FR 8740, Mar. 5, 1996]
Sec. 968.125 Initiation of modernization activities.
After HUD has approved the modernization program and entered into an ACC amendment with the PHA, a PHA shall undertake the modernization activities and expenditures set forth in its approved CIAP budget or CGP Annual Statement/Five-Year Action Plan in a timely, efficient and economical manner. All approved funding must be obligated within two years of approval and expended within three years of approval unless HUD approves a longer time period in the PHA's implementation schedule, as set forth in the CIAP budget or CGP Annual Statement. HUD may approve a longer time period for such reasons as the large size of the grant or the complexity of the work. [61 FR 8741, Mar. 5, 1996]
Sec. 968.115 Modernization and energy conservation standards.
All improvements funded under this part shall: (a) Meet the modernization standards as prescribed by HUD; (b) Incorporate cost-effective energy conservation measures, identified in the PHA's most recently updated energy audit, conducted pursuant to part 965, subpart C; (c) Where changing or installing a new utility system, conduct a life-cycle cost
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solicitation for prior HUD approval before issuance; or (2) Where the estimated contract amount does not exceed the HUDestablished threshold, certify receipt of the required architect's/ engineer's certification that the construction documents accurately reflect HUD-approved work and meet the modernization and energy conservation standards and that the construction solicitation is complete and includes all mandatory items. (d) Contract awards. (1) For CIAP only, a PHA shall obtain HUD approval of the proposed award of a contract if the contract work is inconsistent with the originally approved modernization program or the procurement meets the criteria set forth in 24 CFR 85.36(g)(2)(i) through (iv). In all other instances, a PHA shall make the award without HUD approval after the PHA has certified that: (i) The solicitation and award procedures were conducted in compliance with State or local laws and Federal requirements; {[[Page 514]]} (ii) The award does not meet the criteria in 24 CFR 85.36(g)(2)(i) through (iv) for prior HUD approval; and (iii) The contractor is not on the Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs; (2) For CGP only, a PHA shall obtain HUD approval of the proposed award of a contract if the procurement meets the criteria set forth in 24 CFR 85.36(g)(2)(i) through (iv). (e) Contract modifications. For CIAP only and notwithstanding 24 CFR 85.36(g), except in an emergency endangering life or property, a PHA shall comply with HUD requirements to either: (1) Where the proposed contract modification exceeds the HUDestablished threshold, submit the proposed modification for prior HUD approval before issuance; or (2) Where the proposed contract modification does not exceed the HUDestablished threshold, certify that the
Sec. 968.130 Fund requisitions.
To draw down modernization funds against the approved CIAP budget or CGP Annual Statement, a PHA shall comply with requirements prescribed by HUD. [61 FR 8741, Mar. 5, 1996]
Sec. 968.135 Contracting requirements.
In addition to the requirements specified in 24 CFR parts 5, 85, and 965, subpart A, and SEC. 968.110(e), the following provisions apply: (a) Architect/engineer and other professional services contracts. For CIAP only and notwithstanding 24 CFR 85.36(g), a PHA shall comply with the following HUD requirements: (1) Where the proposed contract amount exceeds the HUD-established threshold, submit the contract for prior HUD approval before execution or issuance; or (2) Where the proposed contract amount does not exceed the HUDestablished threshold, certify that the scope of work is consistent with the originally approved modernization program, and that the amount is appropriate and does not result in the total HUD-approved CIAP budget being exceeded. (b) Assurance of completion. For both CIAP and CGP and notwithstanding 24 CFR 85.36(h), for each construction contract over $100,000, the contractor shall furnish a bid guarantee from each bidder equivalent to 5% of the bid price; and one of the following: (1) A performance and payment bond for 100 percent of the contract price; or (2) Separate performance and payment bonds, each for 50% or more of the contract price; or (3) A 20% cash escrow; or (4) a 25% irrevocable letter of credit. (c) Construction solicitations. For CIAP only and notwithstanding 24 CFR 85.36(g), a PHA shall comply with HUD requirements to either: (1) Where the estimated contract amount exceeds the HUD-established threshold, submit a complete construction
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proposed modification is within the scope of the contract and that any additional costs are within the total HUD-approved CIAP budget amount. (f) Construction requirements. Where indicated by poor performance, a PHA may be required to submit to HUD periodic progress reports and, for prior HUD approval, construction completion documents above a HUDspecified amount. For CGP only, a PHA is notified of additional construction requirements by a notice of deficiency or a corrective action order. (g) Reward for high performers. For CIAP only, if a PHA is both an overall high performer and a modernization high performer under the Public Housing Management Assessment Program (PHMAP), HUD will not establish thresholds, and the PHA is not required to obtain prior HUD approval, under paragraphs (a), (c), and (e) of this section. [61 FR 8741, Mar. 5, 1996]
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(b) Audit. The audit shall follow the guidelines prescribed in 24 CFR part 44, Non-Federal Government Audit Requirements. If the pre-audit or post-audit AMCC indicates that there are excess funds, a PHA shall immediately remit the excess funds as directed by HUD. If the pre-audit or post-audit AMCC discloses unauthorized or ineligible expenditures, a PHA shall immediately take such corrective actions as HUD may direct. [61 FR 8741, Mar. 5, 1996]
Subpart B_Comprehensive Improvement Assistance Program (For PHAs That Own or Operate Fewer Than 250 Units)
Source: 61 FR 8741, Mar. 5, 1996, unless otherwise noted.
Sec. 968.205 Definitions.
In addition to the definitions in SEC. 968.105, the following definitions apply to this subpart: Emergency Modernization (CIAP). A type of modernization program for a development that is limited to physical work items of an emergency nature that poses an immediate threat to the health or safety of residents or is related to fire safety, and that must be corrected within one year of CIAP funding approval. Management capability. A PHA has management capability if it is: (1) Not designated as Troubled under part 901 of this chapter, Public Housing {[[Page 515]]} Management Assessment Program (PHMAP); or (2) Designated as Troubled, but has a reasonable prospect of acquiring management capability through CIAPfunded management improvements and administrative support. A Troubled PHA is eligible for Emergency Modernization only, unless it is making reasonable progress toward meeting the performance targets established in its memorandum of agreement
Sec. 968.140 On-site inspections.
It is the responsibility of the PHA, not HUD, to provide, by contract or otherwise, adequate and competent supervisory and inspection personnel during modernization, whether work is performed by contract or force account labor and with or without the services of an architect/ engineer, to ensure work quality and progress. [58 FR 13938, Mar. 15, 1993. Redesignated at 61 FR 8741, Mar. 5, 1996]
Sec. 968.145 Fiscal closeout.
(a) Actual modernization cost certificate (AMCC). Upon expenditure by the PHA of all funds, or termination by HUD of the activities funded in a modernization program, a PHA shall submit the AMCC, in a form prescribed by HUD, to HUD for review and approval for audit. After audit verification, HUD shall approve the AMCC.
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become available, HUD will notify PHAs of the time frame for submission of the CIAP application and other pertinent information. (b) Distribution of funding. HUD will distribute the available funding under this subpart to every eligible PHA that responds to the notice issued pursuant to paragraph (a) of this section based on two equallyweighted factors: a PHA's share of the total number of units eligible for CIAP; and a PHA's share of the total number of bedrooms in units eligible for CIAP (with studio units counted as one-bedroom units). HUD will also provide a vacancy preference, consisting of an additional increment of funding, to PHAs that have modernization capability and demonstrate that at least 25% of their units are vacant, substandard units (where vacancies are not due to insufficient demand). A PHA has modernization capability if it has previously received CIAP funding and meets the requirements of Modernization capability as defined at SEC. 968.205. (c) ACC amendment. HUD and the PHA shall enter into an ACC amendment in order for the PHA to draw down modernization funds. The ACC amendment shall require low-income use of the housing for not less than 20 years from the date of the ACC amendment (subject to sale of homeownership units in accordance with the terms of the ACC). The PHA Executive Director, where authorized by the Board of Commissioners and permitted by State law, may sign the ACC amendment on behalf of the PHA. HUD has the authority to condition an ACC amendment (e.g., to require a PHA to hire a modernization coordinator or contract administrator to administer its modernization program). (d) Declaration of trust. As HUD may require, the PHA shall execute and file for record a Declaration of Trust, as {[[Page 516]]} provided under the ACC, to protect the rights and interests of HUD throughout the 20-year period during which the PHA is obligated to operate its developments in accordance with the ACC, the Act, and HUD regulations and requirements.
or equivalent under SEC. 901.140 of this chapter or has obtained alternative oversight of its management functions. Modernization capability. A PHA has modernization capability if it is: (1) Not designated as Modernization Troubled under part 901 of this chapter, PHMAP; or (2) Designated as Modernization Troubled, but has a reasonable prospect of acquiring modernization capability through CIAP-funded management improvements and administrative support, such as hiring staff or contracting for assistance. A Modernization Troubled PHA is eligible for Emergency Modernization only, unless it is making reasonable progress toward meeting the performance targets established in its memorandum of agreement or equivalent under SEC. 901.140 of this chapter or has obtained alternative oversight of its modernization functions. Where a PHA does not have a funded modernization program in progress, the Field Office shall determine whether the PHA has a reasonable prospect of acquiring modernization capability through hiring staff or contracting for assistance. Other Modernization (modernization other than emergency). A type of modernization program for a development that includes one or more physical work items, where HUD determines that the physical improvements are necessary and sufficient to extend substantially the useful life of the development, and/or one or more development specific or PHA-wide management work items (including planning costs), and/or lead-based paint activities. Work item. Any separately identifiable unit of work constituting a part of a modernization program. [61 FR 8741, Mar. 5, 1996, as amended at 64 FR 50229, Sept. 15, 1999]
Sec. 968.210 Procedures for obtaining approval of a modernization program.
(a) HUD notification. After modernization funds for a particular FFY
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Sec. 968.215 Resident and homebuyer participation.
A PHA shall establish a Partnership Process, as defined in SEC. 968.105, to develop, implement and monitor the CIAP. Before submission of the CIAP application, a PHA shall consult with the residents, the resident organization, or the resident management corporation (see part 964, subpart C of this chapter) (herein referred to as the resident) of the development(s) being proposed for modernization, regarding its intent to submit an application and to solicit resident comments. A PHA shall give residents a reasonable opportunity to present their views on the proposed modernization and alternatives to it and shall give full and serious consideration to resident recommendations. A PHA shall respond in writing to the residents, indicating its acceptance or rejection of resident recommendations, consistent with HUD requirements and the PHA's own determination of efficiency, economy, and need. After HUD approval of the modernization program, a PHA shall inform the residents of the approved work items and its progress during implementation. Where HUD does not approve the modernization program, a PHA shall so inform the residents.
(b) In addition to the requirements of paragraph (a) of this section, a PHA shall comply with the following requirements: (1) A PHA is not required to obtain prior HUD approval if, in order to complete the originally approved modernization program, the PHA needs to delete or revise approved work items or add new related work items consistent with the original modernization program. In such case, a PHA shall certify that the revisions are necessary to carry out the approved work and do not result in substantial changes to the competitively funded modernization program. (2) A PHA shall not incur any modernization cost on behalf of any development that is not covered by the original CIAP application. (3) Where there are funds leftover after completion of the originally approved modernization program, a PHA may, without prior HUD approval, use the remaining funds to carry out eligible modernization activities at developments covered by the original CIAP application. (4) If a PHA is both an overall high performer and a modernization high performer under the Public Housing Management Assessment Program (PHMAP), the PHA is not required to obtain prior HUD approval to change the method of accomplishment from contract to force account labor.
Sec. 968.225 Budget revisions.
(a) A PHA shall not incur any modernization cost in excess of the total HUD-approved CIAP budget. A PHA shall submit a budget revision, in a form prescribed by HUD, if the PHA plans to deviate from the originally approved modernization program, as it was competitively funded, by deleting or substantially revising approved work items or adding new work items that are unrelated to the originally approved modernization program, or to change the method of accomplishment from contract to force account labor, except as provided in paragraph (b)(4) of this section.
Sec. 968.230 Progress reports.
For each six-month period ending March 31 and September 30, until completion of the modernization program or expenditure of all funds, a PHA shall submit to HUD a progress report, in a form prescribed by HUD. Where HUD determines that a PHA is having implementation problems, HUD may require more frequent reporting.
Sec. 968.235 Time extensions.
A PHA shall not obligate or expend funds after the obligation or expenditure deadline date approved by HUD in the
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original implementation schedule without a time extension, as follows: (a) Certification. A PHA may extend an obligation or expenditure deadline {[[Page 517]]} date no later than 30 calendar days after the existing deadline date, without prior HUD approval, for a period commensurate with the delay, where the PHA certifies that the delay is due to reasons outside of the PHA's control, such as: (1) Need to use leftover funds from a completed modernization program for additional work; (2) Unforeseen delays in contracting or contract administration; (3) Litigation; and (4) Delay by HUD or other institutions. Delay by the PHA's staff or Board of Commissioners or a change in the Executive Director is not considered to be outside of the PHA's control. (b) Prior HUD approval. Where a PHA is unable to meet an obligation or expenditure deadline date and the delay is due to reasons within the PHA's control, the PHA may request HUD approval of a time extension no later than 30 calendar days after the deadline date, to avoid recapture of funds. The request shall include an explanation of the delay, steps take to prevent future delay, and the requested extension.
Subpart C_Comprehensive Grant Program (for PHAs That Own or Operate 250 or More Public Housing Units)
Source: 57 FR 5575, Feb. 14, 1992, unless otherwise noted.
Sec. 968.305 Definitions.
In addition to the definitions in SEC. 968.105, the following definitions apply to this subpart: Action plan. A plan of the actions to be funded by a PHA over a period of five years (including a PHA's proposed allocation of its modernization funds to a reserve established under SEC. 968.112(f)) to make the necessary physical and management improvements identified in the PHA's comprehensive plan. The plan shall be based upon HUD's and the PHA's best estimates of the funding reasonably expected to become available under the next five-year period. The action plan is updated annually to reflect a rolling five-year base. (See SEC. 968.315(e)(5).) Annual Statement. A work statement covering the first year of the Five-Year Action Plan and setting forth the major work categories and costs by development or PHA-wide for the current FFY grant, as well as a summary of costs by development account and implementation schedules for obligation and expenditure of the funds. Annual Submission. A collective term for all documents which the PHA must submit to HUD for review and approval before accessing the current FFY grant funds. Such documents include the Annual Statement, Work Statements for years two through five of the Five-Year Action Plan, local government statement, PHA Board Resolution, materials demonstrating the partnership process and any other documents as prescribed by HUD. Chief executive officer (CEO). The CEO of a unit of general local government means the elected official or the legally designated official, who has the primary responsibility for the conduct of that entity's
Sec. 968.240 HUD review of PHA performance.
HUD shall periodically review PHA performance in carrying out its approved modernization program to determine compliance with HUD requirements, the adequacy of a PHA's inspections as evidenced by the quality of work, and the timeliness of the work. HUD's review may be conducted either in-office or on-site. Where conducted in-office, a PHA shall forward any requested documents to HUD for post-review. Where deficiencies are noted, a PHA shall take such corrective actions as HUD may direct.
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governmental affairs. Examples of the CEO of a unit of general local government are: the elected mayor of a municipality; the elected county executive of a county; the chairperson of a county commission or board in a county that has no elected county executive; or the official designated pursuant to law by the governing body of a unit of general local government (e.g., city manager). Comprehensive plan. A plan prepared by a PHA and approved by HUD setting {[[Page 518]]} forth all of the physical and management improvement needs of the PHA and its public housing developments, indicating the relative urgency of needs and which includes the PHA's action plan, cost estimates, and required local government and PHA certifications. The comprehensive plan may be revised, as necessary, but must be revised at least every sixth year. (See SEC. 968.315(e).) Emergency work. Physical work items of an emergency nature, posing an immediate threat to the health or safety of residents, which must be completed within one year of CGP funding. Management improvements are not eligible as emergency work and, therefore, must be covered by the comprehensive plan (including the action plan) before the PHA may carry them out. Fungibility. Fungibility is a concept which permits a PHA to substitute any work item from the latest approved Five-Year Action Plan to any previously approved CIAP budget or CGP Annual Statement and to move work items among approved budgets without prior HUD approval. Improvement plan. A document developed by the PHA and approved by HUD specifying the actions to be taken, including timetables, to correct deficiencies identified as a result of an assessment, either under PHMAP or pursuant to HUD monitoring or audit findings. Memorandum of Agreement (MOA). A binding contractual agreement between HUD and a troubled PHA, or a mod troubled PHA, which is designed to bring about significant, expeditious and long-
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lasting improvements in the PHA's management of its PHA-owned units. A MOA is required for each PHA designated as troubled or mod troubled. Resident groups. Democratically elected resident groups such as PHAwide resident groups, area-wide resident groups, single development resident groups, or RMCs. Substantial rehabilitation. A modernization program for a development which provides for all physical and management improvements needed to meet the modernization and energy conservation standards and to ensure its long-term physical and social viability. Work Statements. Work Statements cover the second through the fifth years of the Five-Year Action Plan and set forth the major work categories and costs by development or PHA-wide which the PHA intends to undertake in each year of years two through five. In preparing these Work Statements, the PHA shall assume that the current FFY formula amount will be available in each year of years two through five. [57 FR 5575, Feb. 14, 1992, as amended at 58 FR 13931, Mar. 15, 1993; 59 FR 44837, Aug. 30, 1994; 61 FR 8744, Mar. 5, 1996]
Sec. 968.310 Determination of formula amount.
(a) Submission of formula characteristics report--(1) Formula characteristics report. In its first year of participation in the CGP, each PHA shall verify and provide data to HUD, in a form and at a time to be prescribed by HUD, concerning PHA and development characteristics so that HUD can develop the PHA's annual funding allocation in accordance with SEC. 968.103 (e) and (f). If a PHA fails to submit to HUD the formula characteristics report by the prescribed deadline, HUD will use the data which it has available concerning PHA and development characteristics for purposes of calculating the PHA's formula share. After its first year
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appeals in a particular FFY under this paragraph shall be made from subsequent years' allocation of funds under this part; (3) Appeal based upon error. A PHA may appeal in writing HUD's determination of its formula amount within 60 calendar days of the date of HUD's determination on the basis of an error. The PHA may appeal on the basis of error the correctness of data in the formula characteristics report. The PHA must describe the nature of the error, and provide any necessary supporting documentation. HUD shall respond to the PHA's request within 60 calendar days of the date of its receipt of the PHA's request for an appeal. Any adjustment resulting from successful appeals in a particular FFY under this paragraph shall be made from subsequent years' allocation of funds under this part; (c) Reduced formula allocation for PHAs designated as mod troubled under PHMAP--(1) Notification. After a PHA is designated as a mod troubled agency under PHMAP (24 CFR part 901), HUD shall inform the PHA that its funding may be limited under this subpart because of its designation as a mod troubled PHA. HUD shall also provide the PHA with information concerning the PHA's funding levels for CGP, CIAP and MROP for each of the preceding three FFYs for purposes of determining the PHA's reduced formula allocation, in accordance with paragraph (c)(2)(ii) of this section. In addition, HUD will provide the PHA with information on its full formula allocation under SEC. 968.103 (e) and (f), and the amount which represents 25 percent of the difference between the average amounts provided to the PHA in each of the preceding three FFYs and its full formula allocation. (2) Calculation of funding for mod troubled PHAs. HUD shall calculate the funding level for mod troubled PHAs in accordance with paragraph (c)(1) of this section in the following manner: (i) The average of the amount that the mod troubled PHA received for modernization activities under this part, and for Major Reconstruction of Obsolete
of participation in the CGP, a PHA is not required to submit formula characteristics data to HUD, but is required to respond to data transmitted by HUD if there have been changes to its inventory from that previously reported, or where requested by HUD. On an annual basis, HUD will transmit to the PHA, the formula characteristics report which reflects the data that will be used to determine the PHA's formula share. The PHA will have at least 30 calendar days to review and advise HUD of errors in this HUD report. Necessary adjustments will be made to the PHA's data before the formula is run for the current FFY. (2) PHA Board Resolution. The PHA must include with its formula characteristics report under paragraph (a)(1) of this section, a resolution adopted by the PHA Board of Commissioners approving the report, and certifying that {[[Page 519]]} the data contained in the formula characteristics report are accurate. (b) HUD notification of formula amount; appeal rights--(1) Formula amounts notification. After HUD determines a PHA's formula allocation under SEC. 968.103 (e) and (f) based upon the PHA, development, and community characteristics, it shall notify the PHA of its formula amount and provide instructions on the Annual Submission in accordance with SEC. Sec. 968.315 and 968.325; (2) Appeal based upon unique circumstances. A PHA may appeal in writing HUD's determination of its formula amount within 60 calendar days of the date of HUD's determination on the basis of ``unique circumstances.'' The PHA must indicate what is unique, and specify the manner in which it is different from all other PHAs participating in the CGP, and provide any necessary supporting documentation. HUD shall render a written decision on an PHA's appeal under this paragraph within 60 calendar days of the date of its receipt of the PHA's request for an appeal. HUD shall publish in the Federal Register a description of the facts supporting any successful appeals based upon ``unique circumstances.'' Any adjustments resulting from successful
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Projects (MROP), for each of the preceding three FFYs, which average shall be adjusted to take into account changes in the cost of rehabilitating property based upon the Means Construction Cost Index; plus (ii) Twenty five percent of the difference between the amount determined under paragraph (c)(1)(i) of this section, and the amount that would have been allocated to the PHA for the FFY if it were not designated as a mod troubled PHA. (3) Right of appeal. The notice under paragraph (c)(1) of this section shall also specify that a PHA may petition HUD within 30 calendar days of its receipt of HUD's notice to increase the amount of its fund allocation. HUD shall determine whether to increase the amount of assistance to be provided a PHA under this paragraph based upon the PHA's demonstrated progress in meeting goals and targets set forth in the PHA's Memorandum of Agreement (MOA) under PHMAP, and toward achieving satisfactory performance under the mod troubled indicator/ standard under PHMAP. In its appeal request, a PHA must specify how it is {[[Page 520]]} achieving or making progress toward achieving the goals and objectives set forth in the MOA. The request must be submitted to HUD within 30 calendar days of the date of HUD's notice under this paragraph. HUD shall render a decision in writing on the PHA's request within 60 calendar days of the date of its receipt of the PHA's appeal and any supporting documentation. (4) Maximum allowable allocation to mod troubled PHAs. The maximum amount that HUD may provide to a PHA under this paragraph is the amount that would have been allocated to the PHA for the FFY if it had not been designated as a mod troubled PHA under PHMAP. Where the full formula allocation is less than the average of funding received by the PHA for modernization and MROP for each of the preceding three FFYs, the PHA will receive its full formula amount, and not its average funding level for the preceding three FFYs, plus 25 percent of
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the difference between that figure and its full formula amount. (5) Reallocation of funds withheld from mod troubled PHAs. Any amounts which are not provided to a PHA under paragraph (c)(1) of this section because the PHA is designated as a mod troubled agency under PHMAP, shall be reallocated by HUD to other PHAs under this subpart which are not designated as either troubled or mod troubled agencies under PHMAP, and to IHAs under 24 CFR part 950 (subpart I) which are not determined to be high risk under SEC. 950.135 of this chapter, the ACA, and the Field Office Monitoring of IHAs Handbook. Such funds shall be reallocated in the next FFY based upon the relative needs of these PHAs and IHAs, as determined under the formula. (6) Credits for PHAs designated as mod troubled--(i) Accrual of credits. A PHA that has received a reduced formula allocation under paragraph (c)(1) of this section because it was designated as a mod troubled agency under PHMAP may accrue credits under this paragraph, for up to three consecutive FFYs, representing the difference between: (A) The amount the PHA would have been allocated for the FFY under SEC. 968.103(e) and (f) if it were not designated as a mod troubled PHA under PHMAP; and (B) The reduced funding amount actually provided to the PHA under paragraph (c)(2) of this section because it was designated as a mod troubled PHA under PHMAP. (ii) Failure to remove mod troubled designation. After a three-year period during which the mod troubled PHA has accrued credits under paragraph (c)(6)(i) of this section, the credits accrued by the PHA shall be: (A) Decreased by 10 percent of the total accumulated credits if the PHA's designation as a mod troubled agency under PHMAP is not removed before the end of the first FFY following the three-year accrual period; (B) Decreased by an additional 20 percent of the original total accumulated
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rate at which the PHA shall be provided access to its credits under this section. As a general guideline, HUD intends to provide a PHA with 10% of its accrued credits in the first year; an additional 20% of its accrued credits in the second year; an additional 30% of its accrued credits in the third year; and the remaining 40% of its accrued credits in the fourth year; (2) In any FFY where formerly mod troubled PHAs are entitled to credits exceeding the five percent reserve, HUD shall apply a pro rata reduction for each formerly mod troubled PHA for such FFY. A PHA shall remain entitled to receive its outstanding balance of credits, including any credits not actually received because of such pro rata reduction, in future FFYs, depending upon the availability of funds in the set-aside under SEC. 968.103(c). (Approved by the Office of Management and Budget under control number 2577-0157) [57 FR 5575, Feb. 14, 1992, as amended at 59 FR 44839, Aug. 30, 1994. Redesignated and amended at 61 FR 8744, Mar. 5, 1996]
credits if the PHA's designation as a mod troubled agency under PHMAP is not removed before the end of the second FFY following the three-year accrual period; (C) Decreased by an additional 30 percent of the original total accumulated credits if the PHA's designation as a mod troubled agency under PHMAP is not removed before the end of the third FFY following the three-year accrual period; and (D) Eliminated if the PHA's designation as a mod troubled agency under PHMAP is not removed before the end of the fourth FFY following the three-year accrual period. (iii) Obtaining credits. HUD shall reserve under SEC. 968.103(c) up to five percent of the total formula funds available for allocation in any FFY for the purpose of providing PHAs that were formerly designated as mod troubled PHAs under PHMAP with additional assistance after HUD determines that a PHA is no longer a mod troubled agency. HUD shall make the determination that a PHA is no longer a mod troubled agency based upon its achieving satisfactory performance under the mod indicator/ standard that was initially used to designate the agency as mod troubled under PHMAP. The additional assistance shall be provided to the formerly mod troubled PHA in the FFY following the year in which the PHA is removed from the mod troubled list. Such assistance shall be provided to {[[Page 521]]} the PHA in addition to a PHA's regular formula allocation under SEC. 968.103(e) and (f), and shall consist of: (A) The total amount of credits accumulated by the PHA under paragraph (c)(6)(i) of this section; minus (B) Any reductions under paragraph (c)(6)(ii) of this section to the total accumulated credits, based upon the length of time that the PHA has taken to remove its mod troubled designation; and (C)(1) Adjusted by HUD to take into account the PHA's ability to expeditiously expend the accrued credit amounts. HUD shall consult with the PHA to determine the
Sec. 968.315 Comprehensive Plan (including five-year action plan).
(a) Submission. As soon as possible after modernization funds first become available for allocation under this subpart, HUD shall notify PHAs in writing of their formula amount. For planning purposes, PHAs may use the amount they received under CGP in the prior year in developing their comprehensive plan, or they may wait for the annual HUD notification of formula amount under SEC. 968.310(b)(1). (b)(1) Resident participation. A PHA is required to develop, implement, monitor and annually amend portions of its comprehensive plan in consultation with residents of the developments covered by the comprehensive plan. In addition, the PHA shall consult with resident management corporations (RMCs) to the extent that an RMC manages a development
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covered by the comprehensive plan. The PHA, in partnership with the residents, must develop and implement a process for resident participation that ensures that residents are involved in a meaningful way in all phases of the CGP. Such involvement shall involve implementing the Partnership Process as a critical element of the CGP. (2) Establishment of Partnership Process. The PHA, in partnership with the residents of the developments covered by the plan (and which may include resident leaders, resident councils, resident advisory councils/boards, and RMCs) must establish a Partnership Process to develop and implement the goals, needs, strategies and priorities identified in the comprehensive plan. After residents have organized to participate in the CGP, they may decide to establish a volunteer advisory group of experts in various professions to assist them in the CGP Partnership Process. The Partnership Process shall be designed to achieve the following: (i) To ensure that residents are fully briefed and involved in developing the content of, and monitoring the implementation of, the comprehensive plan including, but not limited to, the physical and management needs assessments, viability analysis, Five-Year Action Plan, and Annual Statement. If necessary, the PHA shall develop and implement capacity building strategies to ensure meaningful resident participation in CGP. Such technical assistance efforts for residents are eligible management improvement costs under CGP; (ii) To enable residents to participate, on a PHA-wide or area-wide basis, in ongoing discussions of the comprehensive plan and strategies for its implementation, and in all meetings necessary to ensure meaningful participation. {[[Page 522]]} (3) Public notice. Within a reasonable amount of time before the advance meeting for residents under paragraph (b)(4) of this section and the public hearing under paragraph (b)(5) of this section, the PHA shall provide public notice of the advance meeting and the public hearing in a manner
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determined by the PHA that ensures notice to all duly elected resident councils. (4) Advance meeting for residents. The PHA shall hold, within a reasonable amount of time before the public hearing under paragraph (b)(5) of this section, a meeting for residents and duly elected resident councils at which the PHA shall explain the components of the comprehensive plan. The meeting shall be open to all residents and duly elected resident councils. (5) Public hearing. The PHA shall hold at least one public hearing, and any appropriate number of additional hearings, to present information on the comprehensive plan/annual submission and the status of prior approval programs. The public hearing shall provide ample opportunity for residents, local government officials, and other interested parties to express their priorities and concerns. The PHA shall give full consideration to the comments and concerns of residents, local government officials, and other interested parties. (c) Local government participation. A PHA shall consult with and provide information to appropriate local government officials with respect to the development of the comprehensive plan to ensure that there is coordination between the actions taken under the consolidated plan (see 24 CFR part 91) for project and neighborhood improvements where public housing units are located or proposed for construction and/ or modernization and improvement and to coordinate meeting public and human service needs of the public and assisted housing projects and their residents. In the case of a PHA with developments in multiple jurisdictions, the PHA may meet this requirement by consulting with an advisory group representative of all the jurisdictions. At a minimum, such consultation must include providing such officials with: (1) Advance written notice of the public hearing required under paragraph (b)(5) of this section; (2) A copy of the summary of total preliminary estimated costs to address physical needs by each development and
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in the comprehensive plan that strengthen the consolidated plan. Each comprehensive plan shall contain the following elements: (1) Executive summary. A PHA shall include as part of its comprehensive plan an executive summary to facilitate review and comprehension by development residents and by the public. The executive summary shall include the following: (i) A summary of total preliminary estimated costs to address physical needs by each development and PHA-wide physical and management needs; and (ii) A specific description of the PHA's process for maximizing the level of participation by residents during the development, implementation and monitoring of the Comprehensive Plan, a summary of the general issues raised on the plan by residents and others during the public comment process and the PHA's response to the general issues. PHA records, such as minutes of planning meetings or resident surveys, shall be maintained in the PHA's files and made available to residents, duly elected resident councils, and other interested parties, upon request; (2) Physical needs assessment--(i) Requirements. The physical needs assessment identifies all of the work that a PHA would need to undertake to bring each of its developments up to the modernization and energy conservation standards, as required by the Act, to comply with the leadbased paint requirements in part 35, subparts A, B, L, and R of this title, and to comply with other program requirements under SEC. 968.110. The physical needs assessment is completed without regard to the availability of funds, and shall include the following: (A) A brief summary of the physical improvements necessary to bring each such development to a level at least equal to applicable HUD standards with respect to modernization standards, energy conservation and life-cycle cost effective performance standards, lead-based paint testing and abatement standards. This summary must indicate the relative urgency
management/operations needs PHA-wide and a specific description of the PHA's process for maximizing the level of participation by residents and a summary of the general issues raised on the plan by residents and others during the public comment process and the PHA's response to the general issues. PHA records, such as minutes of planning meetings or resident surveys, shall be maintained in the PHA's files and made available to residents, resident organizations, and other interested parties upon request; and (3) An opportunity to express their priorities and concerns to ensure due consideration in the PHA's planning process; (d) Participation in coordinating entities. To the extent that coordinating entities are set up to plan and implement the consolidated plans (under 24 CFR part 91), the PHA shall participate in these entities to ensure coordination with broader community development strategies. (e) Contents of comprehensive plan. The comprehensive plan shall identify all of the physical and management improvements needed for a PHA and all of its developments, and that represent needs eligible for funding under SEC. 968.112. The plan also shall include preliminary estimates of the total cost of these improvements. The plan shall set forth general strategies for addressing the identified needs, and highlight any special strategies, such as major redesign or partial demolition of a development, that are necessary to ensure the long-term physical and social viability of the development. Where long-term physical and social viability of the development is dependent upon revitalization of the surrounding neighborhood in the provision of or coordination of public services, or the consolidation or coordination of drug prevention and other human service initiatives, the PHA shall identify these needs and strategies. In addition, the PHA shall identify the funds or other resources in the consolidated {[[Page 523]]} plan that are to be used to help address these needs and strategies and the activities
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of need. If the PHA has no physical improvement needs at a particular development at the time it completes its comprehensive plan, it must so indicate. Similarly, if the PHA intends to demolish, partially demolish, convert, or dispose of a development (or units within a development) it must so indicate in the summary of physical improvements; (B) The replacement needs of equipment systems and structural elements that will be required to be met (assuming routine and timely maintenance is performed) during the period covered by the action plan; (C) A preliminary estimate of the cost to complete the physical work; (D) Any physical disparities between buildings occupied predominantly by one racial or ethnic group and, in such cases, the physical improvements required to correct the conditions; and (E) In addition, with respect to vacant or non-homebuyer occupied Turnkey III units, the estimated number of units that the PHA is proposing for substantial rehabilitation and subsequent sale, in accordance with SEC. 968.112(d)(3). (ii) Source of data. The PHA shall identify in its needs assessment the sources from which it derived data to develop the physical needs assessment under this paragraph (e)(2) and shall retain such source documents in its files; (3) Management needs assessment--(i) Requirements. The plan shall include a comprehensive assessment of the improvements needed to upgrade the management and operation of the PHA and of each viable development so decent, safe, and sanitary living conditions will be provided. The management needs assessment shall include the following, with the relative urgency of need indicated: (A) An identification of the most current needs related to the following areas (to the extent that any of these needs is addressed in a HUD-approved memorandum of agreement or improvement plan, the PHA may simply include a cross-reference to these documents):
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(1) The management, financial, and accounting control systems of the PHA; (2) The adequacy and qualifications of personnel employed by the PHA in {[[Page 524]]} its management and operation, for each significant category of employment; (3) The adequacy and efficacy of: (i) Resident programs and services; (ii) Resident and development security; (iii) Resident selection and eviction; (iv) Occupancy; (v) Maintenance; (vi) Resident management and resident capacity building programs; (vii) Resident opportunities for employment and business development and other self-sufficiency opportunities for residents; and (viii) Homeownership opportunities for residents; (B) Any additional deficiencies identified through PHMAP, audits and HUD monitoring reviews that are not addressed under paragraph (e)(3)(i)(A) of this section. To the extent that any of these is addressed in a HUD-approved memorandum of agreement or improvement plan, the PHA may include a cross-reference to these documents; (C) Any other management and operations needs that the PHA wants to address at the PHA-wide or development level; and (D) A PHA-wide preliminary cost estimate for addressing all the needs identified in the management needs assessment, without regard to the availability of funds; (ii) Sources of funds. The PHA shall identify in its needs assessment the sources from which it derived data to develop the management needs assessment under this paragraph (e)(3) and shall retain such source documents in its files; (4) Demonstration of long-term physical and social viability. (i) General. The plan shall include, on a developmentby-development basis, an analysis of whether completion of the improvements and replacements identified under
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improvements and replacements (or a portion thereof) identified under paragraphs (e)(2) and (e)(3) of this section. In developing its five-year action plan, the PHA shall assume that the current year funding or formula amount will be available for each year of its five-year action plan, whichever the PHA is using for planning purposes, plus the PHA's estimate of the funds that will be available from other sources, such as state and local governments. All activities specified in a {[[Page 525]]} PHA's five-year action plan are contingent upon the availability of funds; (ii) Requirements. Under the action plan, a PHA must indicate how it intends to use the funds available to it under the CGP to address, over a five-year period, the deficiencies (or a portion of the deficiencies) identified in its physical and management needs assessments, as follows: (A) Physical condition. With respect to the physical condition of a PHA's developments, a PHA must indicate in its action plan how it intends to address, over a five-year period, the deficiencies (or a portion of the deficiencies) identified in its physical needs assessment so as to bring each of its developments up to a level at least equal to the modernization and energy conservation standards. This includes specifying the work to be undertaken by the PHA in major work categories (e.g., kitchens, electrical systems, etc.); establishing priorities among the major work categories by development and year, based upon the relative urgency of need; and estimating the cost of each of the identified major work categories. In developing its action plan, a PHA shall give priority to the following: (1) Activities required to correct emergency conditions; (2) Activities required to meet statutory or other legally mandated requirements (e.g., compliance with a court-ordered desegregation plan or voluntary compliance agreement); (3) Activities required to meet the needs identified in the Section 504 needs
paragraphs (e)(2) and (e)(3) of this section will reasonably ensure the long-term physical and social viability, including achieving structural/system soundness and full occupancy, of the development at a reasonable cost. For cost reasonableness, the PHA shall determine whether the unfunded hard costs satisfy the definition of ``reasonable cost.'' Where the PHA wishes to fund a development, for other than emergencies, where hard costs exceed that reasonable cost, the PHA shall submit written justification to the Field Office. If the Field Office agrees with the PHA's request, the Field Office shall forward its recommendation to Headquarters for final decision. Where the estimated per unit unfunded hard cost is equal to or less than the per unit TDC for the smallest bedroom size at the development, no further computation of the TDC limit is required. The PHA shall keep documentation in its files to support all cost determinations. The Field Office will review cost reasonableness as part of its review of the annual submission and the performance and evaluation report. As necessary, HUD will review the PHA's documentation in support of its cost reasonableness, taking into account broader efforts to revitalize the neighborhoods in which the development is located; (ii) Determination of non-viability. Where a PHA's analysis of a development under paragraph (e) of this section establishes that completion of the identified improvements and replacements will not result in the long-term physical and social viability of the development at a reasonable cost, the PHA shall not expend CGP funds for the development, except for emergencies and essential non-routine maintenance necessary to maintain habitability until residents can be relocated. The PHA shall specify in its comprehensive plan the actions it proposes to take with respect to the nonviable development (e.g., demolition or disposition under 24 CFR part 970); (5) Five-year action plan. (i) General. The comprehensive plan shall include a rolling five-year action plan to carry out the
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assessment within the regulatory timeframe; and (4) Activities required to complete lead-based paint testing and abatement requirements; (B) Management and operations. A PHA must address in its action plan the management and operations deficiencies (or a portion of the deficiencies) identified in its management needs assessment, as follows: (1) With respect to the management and operations needs of the PHA, the PHA must identify how it intends to address with CGP funds, if necessary, the deficiencies (or a portion thereof) identified in its management needs assessment, including work identified through PHMAP, audits, HUD monitoring reviews, and selfassessments. The action plan must indicate the relative urgency of need; (2) A preliminary PHA-wide cost estimate, by major work category. (iii) Procedure for maintaining current five-year action plan. The PHA shall maintain a current five-year action plan by annually amending its five-year action plan, in conjunction with the annual submission; (6) Local government statement. The comprehensive plan shall include a statement signed by the chief executive officer of the unit of general local government (or, in the case of a PHA with developments in multiple jurisdictions, from the CEO of each such jurisdiction) certifying to the following: (i) The PHA developed the comprehensive plan/five-year action plan or amendments thereto in consultation with officials of the appropriate governing body and with development residents covered by the comprehensive plan/five-year action plan, in accordance with the requirements of paragraphs (b) and (c) of this section; (ii) The comprehensive plan/five-year action plan or amendments thereto are consistent with the appropriate governing body's assessment of its low income housing needs (as evidenced by its consolidated plan under 24 CFR part 91, if applicable), and that the appropriate governing body will
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cooperate in providing resident programs and services; and (iii) The PHA's proposed drug elimination activities are coordinated with, and supportive of, local drug elimination strategies and neighborhood improvement programs, if applicable; and (7) PHA resolution. The plan shall include a resolution, in a form prescribed by HUD, adopted by the PHA Board of Commissioners, and signed by the Board Chairman of the PHA, approving the comprehensive plan or any amendments. (f) Amendments to the comprehensive plan--(1) Extension of time for performance. A PHA shall have the right to amend its comprehensive plan (including the action plan) to extend the time for performance whenever HUD has not provided the amount of assistance set forth in the comprehensive plan or has {[[Page 526]]} not provided the assistance in a timely manner; (2) Amendments to needs assessments. The PHA shall amend its plan by revising its needs assessments whenever it proposes to carry out activities in its five-year action plan or annual statement that are not reflected in its current needs assessments (except in the case of emergencies). The PHA may propose an amendment to its needs assessments, in connection with the submission of its annual submission (see SEC. 968.325) or at any other time. These amendments shall be reviewed by HUD in accordance with SEC. 968.320. (3) Six-year revision of comprehensive plan. Every sixth year following the initial year of participation, the PHA shall submit to HUD, with its annual submission, a complete update of its comprehensive plan. A PHA may elect to revise some or all parts of the comprehensive plan more frequently. (4) Annual revision of five-year action plan. Annually, the PHA shall submit to HUD, with its annual submission, an update of its fiveyear action plan, eliminating the previous year and adding an additional year. The PHA shall identify changes in work categories (other than those included in the
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new fifth year) from the previous year fiveyear action plan when making this annual submission. (5) Required submissions. Any amendments to the comprehensive plan under this section must be submitted with the PHA resolution under SEC. 968.315(e)(7). (g) Prerequisite for receiving assistance--(1) Prohibition of assistance. No financial assistance, except for emergency work to be funded under SEC. Sec. 968.103(b) and 968.112(a)(1)(ii), and for modernization needs resulting from disasters under SEC. 968.103(b), may be made available under this subpart unless HUD has approved a comprehensive plan submitted by the PHA that meets the requirements of this section. A PHA that has failed to obtain approval of its comprehensive plan by the end of the FFY shall have its formula allocation for that year (less any formula amounts provided to the PHA for emergencies) added to the subsequent year's appropriation of funds for grants under this part. HUD shall allocate such funds to PHAs and IHAs participating in the CGP in accordance with the formula under SEC. 968.103(e) and (f) in the subsequent FFY. A PHA that elects in any FFY not to participate in the CGP may participate in the CGP in subsequent FFYs; (2) Requests for emergency assistance. A PHA may receive funds from its formula allocation to address emergency modernization needs where HUD has not approved a PHA's comprehensive plan. To request such assistance, a PHA shall submit to HUD a request for funds in such form as HUD may prescribe, including any documentation necessary to support its claim that an emergency exists. HUD shall review the request and supporting documentation to determine if it meets the definition of ``emergency work'' as set forth in SEC. 968.305. (Approved by the Office of Management and Budget under control number 2577-0157) [61 FR 8744, Mar. 5, 1996, as amended at 64 FR 50229, Sept. 15, 1999]
Sec. 968.320 HUD review and approval of comprehensive plan (including five-year action plan).
(a) Submission of comprehensive plan. (1) Upon receipt of a comprehensive plan from a PHA, HUD shall determine whether: (i) The plan contains each of the required components specified at SEC. 968.315(e); and (ii) Where applicable, the PHA has submitted any additional information or assurances required as a result of HUD monitoring, findings of inadequate PHA performance, audit findings, or civil rights compliance findings; (2) Acceptance for review. If the PHA has submitted a comprehensive plan (including the action plan) which meets the criteria of paragraph (a)(1) of this section, HUD shall accept the comprehensive plan for review, within 14 calendar days of its receipt in the field office. The PHA shall be notified in writing that the comprehensive plan has been accepted by HUD for review, and that the 75-day review period is proceeding; (3) Time period for review. A comprehensive plan that is accepted by HUD for review shall be considered to be approved unless HUD notifies the {[[Page 527]]} PHA in writing, postmarked within 75 calendar days of the date of HUD's receipt of the comprehensive plan for review, that HUD has disapproved the plan. HUD shall not disapprove a comprehensive plan on the basis that it cannot complete its review within the 75-day deadline; (4) Rejection of comprehensive plan. If a PHA has submitted a comprehensive plan (including the action plan), which does not meet the requirements of paragraph (a)(1) of this section, HUD shall notify the PHA within 14 calendar days of its receipt that HUD has rejected the plan for review. In such case, HUD shall indicate the reasons for rejection, the modifications required to qualify the comprehensive plan for HUD
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review, and the deadline date for receipt of any modifications. (b) HUD approval of comprehensive plan (including action plan). (1) A comprehensive plan (including the action plan) that is accepted by HUD for review in accordance with paragraph (a) of this section shall be considered to be approved, unless HUD notifies the PHA in writing, postmarked within 75 days of the date of HUD's receipt of the comprehensive plan for review, that HUD has disapproved the plan, indicating the reasons for disapproval, and the modifications required to make the comprehensive plan approvable. The PHA must re-submit the comprehensive plan to HUD, in accordance with the deadline established by HUD, which may allow up to 75 calendar days before the end of the FFY for HUD review. If the revised plan is disapproved by HUD following its resubmission, or if the PHA fails to resubmit by the deadline established by HUD, any funds that would have been allocated to the PHA shall be added to the subsequent year's appropriation of funds for grants under this part. HUD shall allocate such funds to PHAs and IHAs participating in the CGP in accordance with the formula under SEC. 968.103(e) and (f). HUD shall not disapprove a comprehensive plan on the basis that the Department cannot complete its review under this section within the 75day deadline; (2) HUD shall approve the Comprehensive Plan except where it makes a determination in accordance with one or more of the following: (i) Comprehensive Plan is incomplete in significant matters; (ii) Identified needs are plainly inconsistent with facts and data; (A) Identified physical improvements and replacements are inadequate; (B) Identified management improvements are inadequate; (C) Proposed physical and management improvements fail to address identified needs; (iii) Action plan is plainly inappropriate to meeting identified needs;
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(iv) Inadequate demonstration of longterm viability at reasonable cost; and (v) Contradiction of local government certification or PHA resolution. (c) Effect of HUD approval of Comprehensive Plan. After HUD approves the Comprehensive Plan (including the FiveYear Action Plan), or any amendments to the plan, it shall be binding upon HUD and the PHA, until such time as the PHA submits, and HUD approves, an amendment to its plan. The PHA is expected to undertake the work set forth in the Annual Statement. However, the PHA may undertake any of the work identified in any of the other four years of the latest approved Five-Year Action Plan, current approved Annual Statement or previously approved CIAP budgets, without further HUD approval. Actual uses of the funds are to be reflected in the PHA annual Performance and Evaluation Report for each grant. See SEC. 968.330. The PHA is encouraged to inform the residents of significant changes (such as changes in scope of work or whenever it moves items within the approved Five-Year Action Plan). Documentation of that information shall be retained in PHA files. If HUD determines as a result of an audit or monitoring findings that a PHA has provided false or substantially inaccurate data in its Comprehensive Plan/Annual Submission or has circumvented the intent of the program, HUD may condition the receipt of assistance, in accordance with SEC. 968.335. Moreover, in accordance with 18 U.S.C. 1001, any individual or entity who knowingly and willingly makes or uses a document or writing containing any false, fictitious or fraudulent statement or entry, in any matter within the jurisdiction of any {[[Page 528]]} department or agency of the United States, shall be fined not more than $10,000 or imprisoned for not more than five years, or both. (Approved by the Office of Management and Budget under control number 2577-0157)
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(c) Acceptance for review. (1) Upon receipt of an Annual Submission from a PHA, HUD shall determine whether: (i) The Annual Submission contains each of the required components; and (ii) The PHA has submitted any additional information or assurances required as a result of HUD monitoring, findings of inadequate PHA performance, audit findings, and civil rights compliance findings. (2) If the PHA has submitted a complete Annual Submission and all required information and assurances, HUD will accept the submission for review, as of the date of receipt. If the PHA has not submitted all required material, HUD will promptly notify the PHA that it has disapproved the submission, indicating the reasons for disapproval, the modifications required to qualify the Annual Submission for HUD review, and the date by which such modifications must be received by HUD. (d) Resident and local government participation. A PHA is required to develop its Annual Submission, including any proposed amendments to its Comprehensive Plan as provided in SEC. 968.315 (b) and (c), in consultation with officials of the appropriate governing body (or, in the case of a PHA with developments in multiple jurisdictions, in consultation with the CEO of each such jurisdiction or with an advisory group representative of all jurisdictions) and with residents and duly elected resident councils of the developments covered by the Comprehensive Plan, as follows: (1) Public notice. Within a reasonable amount of time before the advance meeting for residents under paragraph (d)(2) of this section, and the public hearing under paragraph (d)(3) of this section, the PHA shall annually provide public notice of the advance meeting and the public hearing in a manner determined by the PHA and which ensures notice to all duly elected resident councils; (2) Advance Meeting with residents. The PHA shall at least annually hold a meeting open to all residents and duly elected resident councils. The advance
[57 FR 5575, Feb. 14, 1992, as amended at 59 FR 44841, Aug. 30, 1994. Redesignated and amended at 61 FR 8747, Mar. 5, 1996]
Sec. 968.325 Annual submission of activities and expenditures.
(a) General. The Annual Submission is a collective term for all documents which the PHA must submit to HUD for review and approval before accessing the current FFY grant funds. Such documents include the Annual Statement, Work Statements for years two through five of the Five-Year Action Plan, local government statement, PHA Board Resolution, materials demonstrating the partnership process and any other documents as prescribed by HUD. For planning purposes, a PHA may use either the amount of funding received in the current year or the actual formula amount provided in HUD's notification under SEC. 968.310(b)(1) in developing the Five-Year Action Plan for presentation at the resident meetings and public hearing. Work Statements cover the second through the fifth years of the Five-Year Action Plan and set forth the major work categories and costs by development or PHA-wide which the PHA intends to undertake in each year of years two through five. In preparing these Work Statements, the PHA shall assume that the current FFY formula amount will be available in each year of years two through five, as discussed in SEC. 968.315(d)(5)(i). The Work Statements for all five years will be at the same level of detail so that the PHA may interchange work items. A PHA may budget up to 8% of its annual grant in a contingency account for cost overruns. (b) Submission. After receiving HUD notification of the formula amount and estimating how much funding will be available from other sources, such as State and local governments, and determining its activities and costs based on the current FFY formula amount, the PHA shall submit its Annual Submission.
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meeting shall be held within a reasonable amount of time before the public hearing under paragraph (d)(3) of this {[[Page 529]]} section. The PHA will provide residents with information concerning the contents of the PHA's Five-Year Action Plan (and any proposed amendments to the PHA's Comprehensive Plan to be submitted with the Annual Submission) so that residents can comment adequately at the public hearing on the contents of the FiveYear Action Plan and any proposed amendments to the Comprehensive Plan. (3) Public hearing. The PHA shall annually hold at least one public hearing, and any appropriate number of additional hearings, to present information on the Annual Submission and the status of prior approved programs. The public hearing shall provide ample opportunity for residents of the developments covered by the Comprehensive Plan, officials of the appropriate governing body, and other interested parties, to express their priorities and concerns. The PHA shall give full consideration to the comments and concerns of residents, local government officials, and other interested parties in developing its Five-Year Action Plan, or any amendments to its Comprehensive Plan. (4) Expedited scheduling. PHAs are encouraged to hold the meeting with residents and duly elected resident councils under paragraph (d)(2) of this section, and the public hearing under paragraph (d)(3) of this section between July 1 (i.e., after the end of the program year--June 30) and September 30, using the formula amount for the current FFY. If a PHA elects to use such expedited scheduling, it must explain at the meeting with residents and duly elected resident councils and at the public hearing that the current FFY amount is not the actual grant amount for the subsequent year, but is rather the amount used for planning purposes. It must also explain that the FiveYear Action Plan will be adjusted when HUD provides notification of the actual formula amount, and explain which major work categories at which developments may
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be added or deleted to adjust for the actual formula amount and that any added work categories/developments will come from the Comprehensive Plan. (e) Contents of Annual Submission. The Annual Statement for each year must include, for each development or on a PHAwide basis for management improvements or certain physical improvements for which work is to be funded out of that year's grant: (1) A list of development accounts with an identification of major work categories; (2) The cost for each major work category, as well as a summary of cost by development account; (3) The PHA-wide or developmentspecific management improvements to be undertaken during the year; (4) For each development and for any management improvements not covered by a HUD-approved memorandum of agreement or management improvement plan, a schedule for the use of current year funds, including target dates for the obligation and expenditure of the funds (see SEC. 968.125); (5) A summary description of the actions to be taken with non-CGP funds to meet physical and management improvement needs which have been identified by a PHA in its needs assessments; (6) Any documentation that HUD needs to assist it in carrying out its responsibilities under the National Environmental Policy Act and other related authorities in accordance with SEC. 968.110(c) and (d); (7) Other information, as specified by HUD and as approved by OMB under the Paperwork Reduction Act; and (8) A PHA resolution approving the Annual Submission or any amendments thereto, as set forth in SEC. 968.315(e)(7). (f) Additional submissions with Annual Submission. A PHA shall submit with the Annual Submission any amendments to the Comprehensive Plan, as set forth in SEC. 968.315(f), and such additional information as may be prescribed by HUD. HUD shall review any proposed amendments to the
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Failure to obligate formula funds. If the PHA fails to obligate formula funds within the approved or extended time period, the PHA may be subject to an alternative management strategy which may involve third-party oversight or administration of the modernization function. HUD would only require such action after a corrective action order had been issued under SEC. 968.335 and the PHA failed to comply with the order. HUD could then require an alternative management strategy in a corrective action order. A PHA may appeal in writing the corrective action order requiring an alternative management strategy within 30 calendar days of that order. HUD Headquarters shall render a written decision on a PHA's appeal within 30 calendar days of the date of its receipt of the PHA's appeal. (2) Extension of time for performance. A PHA may extend the target dates for fund obligation and expenditure in the approved Annual Statement whenever any delay outside the PHA's control occurs, as specified by HUD, and the extension is made in a timely manner. Such revision is subject to HUD review under SEC. 968.345(a)(2) as to the PHA's continuing capacity. HUD shall not review as to a PHA's continuing capacity any revisions to a PHA's Comprehensive Plan and related statements where the basis for the revision is that HUD has not provided the amount of assistance set forth in the Annual Submission, or has not provided such assistance in a timely manner. (j) ACC Amendment. After HUD approval of each year's Annual Submission, HUD and the PHA shall enter into an ACC amendment in order for the PHA to draw down modernization funds. The ACC amendment shall require low-income use of housing for not less than 20 years from the date of the ACC amendment (subject to sale of homeownership units in accordance with the terms of the ACC). (k) Declaration of trust. As HUD may require, the PHA shall execute and file for record a Declaration of Trust as provided under the ACC to protect the rights and interests of HUD throughout the 20-year
Comprehensive Plan in accordance with review standards under SEC. 968.320(b). (g) HUD review and approval of Annual Submission--(1) General. An Annual Submission accepted in accordance with paragraph (a) of this section shall be considered to be approved, unless HUD notifies the PHA in writing, postmarked within 75 calendar days of the date that HUD receives the Annual {[[Page 530]]} Submission for review under paragraph (c) of this section, that HUD has disapproved the Annual Submission, indicating the reasons for disapproval, the modifications required to make the Annual Submission approvable, and the date by which such modifications must be received by HUD. HUD may request additional information (e.g., for eligibility determinations) to facilitate review and approval of the Annual Submission during the 75-day review period. HUD shall not disapprove an Annual Submission on the basis that the Department cannot complete its review under this section within the 75day deadline; (2) Bases for disapproval for Annual Submission. HUD shall approve the Annual Submission, except where: (i) Plainly inconsistent with Comprehensive Plan. HUD determines that the activities and expenditures proposed in the Annual Submission are plainly inconsistent with the PHA's approved Comprehensive Plan; (ii) Contradiction of PHA resolution. HUD has evidence which tends to challenge, in a substantial manner, the certifications contained in the board resolution, as required by SEC. 968.315(e)(7). (h) Amendments to Annual Statement. The PHA shall advise HUD of all changes to the PHA's approved Annual Statement in its Performance and Evaluation Report submitted under SEC. 968.330. The PHA shall submit to HUD for prior approval any additional work categories (except for emergency work) which are not within the PHA's approved Five-Year Action Plan. (i) Failure to obligate formula funds and extension of time for performance--(1)
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period during which the PHA is obligated to operate its developments in accordance with the ACC, the Act, and HUD regulations and requirements. (Approved by the Office of Management and Budget under control number 2577-0157) [57 FR 5575, Feb. 14, 1992, as amended at 59 FR 44841, Aug. 30, 1994. Redesignated and amended at 61 FR 8748, Mar. 5, 1996]
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Sec. 968.330 PHA performance and evaluation report.
For any FFY in which a PHA has received assistance under this subpart, the PHA shall submit a Performance and Evaluation Report, in a form and {[[Page 531]]} at a time to be prescribed by HUD, describing its use of assistance in accordance with the approved Annual Statement. The PHA shall make reasonable efforts to notify residents and officials of the appropriate governing body of the availability of the draft report, make copies available to residents in the development office, and provide residents with at least 30 calendar days in which to comment on the report. (Approved by the Office of Management and Budget under control number 2577-0157) [57 FR 5575, Feb. 14, 1992, as amended at 59 FR 44843, Aug. 30, 1994. Redesignated and amended at 61 FR 8748, Mar. 5, 1996]
Sec. 968.335 HUD review of PHA performance.
(a) HUD determination. At least annually, HUD shall carry out such reviews of the performance of each PHA as may be necessary or appropriate to make the determinations required by this paragraph, taking into consideration all available evidence. (1) Conformity with comprehensive plan. HUD will determine whether the PHA has carried out its activities under this
subpart in a timely manner and in accordance with its comprehensive plan. (2) Continuing capacity. HUD will determine whether the PHA has a continuing capacity to carry out its comprehensive plan in a timely manner. After the first full operational year of CGP, CIAP experience will not be taken into consideration except where the PHA has not yet had comparable experience under the CGP. (3) Reasonable progress. HUD shall determine whether the PHA has satisfied, or has made reasonable progress towards satisfying, the following performance standards: (i) Conformity with its comprehensive plan, including its annual statement and latest HUD-approved five-year action plan, and other statutory and regulatory requirements; (ii) Continuing capacity to carry out its comprehensive plan in a timely manner and expend the annual grant funds; and (iii) Reasonable progress toward bringing all of its developments to the modernization and energy conservation standards and toward implementing the work specified in the annual statement or five-year action plan designed to address management deficiencies. (b) Notice of deficiency. Based on HUD reviews of PHA performance and findings of any of the deficiencies in paragraph (d) of this section, HUD may issue to the PHA a notice of deficiency stating the specific program requirements which the PHA has violated and requesting the PHA to take any of the actions in paragraph (e) of this section. (c) Corrective action order. (1) Based on HUD reviews of PHA performance and findings of any of the deficiencies in paragraph (d) of this section, HUD may issue to the PHA a corrective action order, whether or not a notice of deficiency has previously been issued in regard to the specific deficiency on which the corrective action order is based. HUD may order corrective action at any time by notifying the PHA of the specific program requirements which the PHA has violated,
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reasonably believes require corrective action; or (6) The PHA has failed to repay HUD for amounts awarded under the CGP program that were improperly expended. (e) Types of corrective action. HUD may direct a PHA to take one or more of the following corrective actions: (1) Submit additional information: (i) Concerning the PHA's administrative, planning, budgeting, accounting, management, and evaluation functions, to determine the cause for a PHA not meeting the standards in paragraph (a)(1), (a)(2), or (a)(3) of this section; (ii) Explaining any steps the PHA is taking to correct the deficiencies; (iii) Documenting that PHA activities were not inconsistent with the PHA's annual statement or other applicable laws, regulations, or program requirements; and (iv) Demonstrating that the PHA has a continuing capacity to carry out the comprehensive plan in a timely manner; (2) Submit detailed schedules for completing the work identified in its Annual Statements and report periodically on its progress on meeting the schedules; (3) Notwithstanding 24 CFR 85.36(g), submit to HUD the following documents for prior approval, which may include, but are not limited to: (i) Proposed agreement with the architect/engineer (prior to execution); (ii) Complete construction and bid documents (prior to soliciting bids); (iii) Proposed award of contracts, including construction and equipment contracts and management contracts; or (iv) Proposed contract modifications prior to issuance, including modifications to construction and equipment contracts, and management contracts; (4) Submit additional material in support of one or more of the statements, resolutions, and certifications submitted as part of the PHA's Comprehensive Plan, Five-Year Action Plan, or Performance and Evaluation Report; (5) Not incur financial obligations, or to suspend payments for one or more activities;
and specifying that any of the corrective actions listed in paragraph (e) of this section must be taken. HUD shall design corrective action to prevent a continuation of the deficiency, mitigate any adverse effects of the deficiency to the extent possible, or prevent a recurrence of the same or similar deficiencies; (2) Before ordering corrective action, HUD will notify the PHA and give it an opportunity to consult with HUD regarding the proposed action; (3) Any corrective action ordered by HUD shall become a condition of the grant agreement; (4) If HUD orders corrective action by a PHA in accordance with this section, the PHA's Board of Commissioners must notify affected residents of HUD's determination, the bases for the determination, the conditioning requirements imposed under this paragraph, and the consequences to the PHA if it fails to comply with HUD's requirements. (d) Basis for corrective action. HUD may order a PHA to take corrective action only if HUD determines: (1) The PHA has not submitted a performance and evaluation report, in accordance with SEC. 968.330; (2) The PHA has not carried out its activities under the CGP program in a timely manner and in accordance with {[[Page 532]]} its comprehensive plan or HUD requirements, as determined in paragraph (a)(1) of this section; (3) The PHA does not have a continuing capacity to carry out its comprehensive plan in a timely manner or in accordance with its comprehensive plan or HUD requirements, as determined in paragraph (a)(2) of this section; (4) The PHA has not satisfied, or has not made reasonable progress towards satisfying, the performance standards specified in paragraph (a)(3) of this section; (5) An audit conducted in accordance with 24 CFR part 44, or pursuant to other HUD reviews (including monitoring findings) reveals deficiencies that HUD
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(6) Reimburse, from non-HUD sources, one or more program accounts for any amounts improperly expended; (7) Submit to an alternative management strategy which may involve third-party oversight or administration of the modernization function; and (8) Take such other corrective actions HUD determines appropriate to correct PHA deficiencies. (f) Failure to take corrective action. In cases where HUD has ordered corrective action and the PHA has failed to take the required actions within a reasonable time, as specified by HUD, HUD may take one or more of the following steps; (1) Withhold some or all of the PHA's grant; (2) Declare a breach of the ACC grant amendment with respect to some or all of the PHA's functions; or (3) Any other sanction authorized by law or regulation. (g) Reallocation of funds that have been withheld. Where HUD has withheld for a prescribed period of time some or all of a PHA's annual grant, HUD may reallocate such amounts to other PHAs/IHAs under the CGP program, subject to approval in appropriations acts. The reallocation shall be made to IHAs which HUD has determined to be administratively capable under SEC. 950.135, and to PHAs under the CGP program which are not designated as either troubled or mod troubled under the PHMAP at 24 CFR part 901, based upon the relative needs of these IHAs and PHAs, as determined under the formula at SEC. 968.103(e) and (f). {[[Page 533]]} (h) Right to appeal. Before withholding some or all of the PHA's annual grant, declaring a breach of the ACC grant amendment, or reallocating funds that have been withheld, HUD will notify the PHA and give it an opportunity, within a prescribed period of time, to present to the Assistant Secretary for Public and Indian Housing any arguments or additional facts and data concerning the proposed action. (i) Notification of residents. The PHA's Board of Commissioners must notify
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affected residents of HUD's final determination to withhold funds, declare a breach of the ACC grant amendment, or reallocate funds, as well as the basis for, and the consequences resulting from, such a determination. (j) Recapture. In addition, HUD may recapture for good cause any grant amounts previously provided to an PHA, based upon a determination that the PHA has failed to comply with the requirements of the CGP program. Before recapturing any grant amounts, HUD will notify the PHA and give it an opportunity to appeal in accordance with paragraph (h) of this section. Any reallocation of recaptured amounts will be reallocated in accordance with paragraph (g) of this section. The PHA's board of Commissioners must notify affected residents of HUD's final determination to recapture any funds. (k) Cumulative remedies. The authority to condition, withhold, reallocate or recapture a PHA's grant, as provided in this section, is in addition to the authority contained in SEC. 968.310(c) to reduce a PHA's formula allocation based upon its designation as a mod troubled PHA. (Approved by the Office of Management and Budget under control number 2577-0157) [57 FR 5575, Feb. 14, 1992, as amended at 59 FR 44843, Aug. 30, 1994. Redesignated and amended at 61 FR 8748, Mar. 5, 1996; 62 FR 27126, May 16, 1997]
Subpart D_Vacancy Reduction Program
Source: 59 FR 30478, June 13, 1994, unless otherwise noted.
Sec. 968.416 Fund requisitions.
To request funds against the total approved vacancy reduction program budget, a PHA must submit a request to HUD in accordance with HUD requirements.
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requirements. In these reviews HUD will determine whether the PHA has: (1) Carried out its vacancy reduction activities in a timely manner and in accordance with its vacancy reduction plan; (2) Completed, or made reasonable progress toward completing, the physical items funded under the vacancy reduction plan, and whether the work items being carried out conform with the modernization and energy standards in SEC. 968.115 of this chapter; (3) Implemented, or made reasonable progress toward implementing, the management improvements funded under the vacancy reduction program; and (4) Made reasonable progress in meeting the goals established in its vacancy reduction plan. (b) Notice of deficiency. If HUD finds any deficiency in a review of a grantee's performance under this part, HUD may issue to the grantee a notice of deficiency stating the specific program requirements that the grantee has violated and requesting the grantee to take corrective action. (c) Corrective action order. (1) Issuance. If HUD finds any of the deficiencies listed in paragraph (c)(3) of this section in its review of the grantee's performance, HUD may issue to the grantee a corrective action order, whether or not a notice of deficiency has previously been issued on the specific deficiency. The corrective action order shall notify the grantee of the specific program requirements that the grantee has violated and shall specify the corrective action. (2) Consultation with grantee. Before ordering corrective action, HUD will give the grantee an opportunity to consult with HUD regarding the proposed action. (3) Bases for corrective action. HUD may order a grantee to take corrective action only if HUD determines: (i) The grantee has not submitted a performance report as required by HUD; (ii) The grantee has not carried out activities under its vacancy reduction program in a timely manner and in accordance with HUD requirements;
Sec. 968.419 Grantee's oversight responsibilities.
Each grantee shall provide, by contract or otherwise, adequate and competent supervisory and inspection personnel to assure work quality and progress during modernization, whether work is performed by contract or force account labor and with or without the services of an architect/ engineer.
Sec. 968.422 Progress reports and completion schedule.
(a) Reports required. Until completion of the activities funded under the vacancy reduction program, the grantee shall submit to HUD, in a form and at a time prescribed by HUD, the following: (1) A report on modernization fund expenditures; (2) A narrative report that includes an accounting of the grantee's progress against the milestones established in its vacancy reduction plan. The report shall include the number of both funded and regular turn-over units that have been made ready for occupancy; and (3) Any additional information as HUD may require. (b) Completion schedule. HUD expects that most work items funded under this program will be completed within one year. Work items must be completed within two years from the date of funding, or by some other time as may be specified in the Notice of Funding Availability, unless prior approval is obtained from HUD. (Approved by the Office of Management and Budget under control number 2577-0181)
Sec. 968.425 HUD review of grantee performance.
(a) Performance reviews. HUD shall carry out such reviews of the performance of each funded PHA as may be necessary or appropriate to determine {[[Page 534]]} compliance with the PHA's vacancy reduction plan and related HUD
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(iii) The grantee does not have continuing capacity to carry out activities in its vacancy reduction plan; or (iv) An audit conducted in accordance with 24 CFR part 44, or pursuant to other HUD reviews, reveals deficiencies that HUD reasonably believes require corrective action. (d) Nature of corrective action. (1) HUD shall design corrective action to prevent a continuation or recurrence of the same or a similar deficiency or to mitigate to the greatest extent feasible any adverse effects of the deficiency. (2) HUD may order a grantee to take the corrective action that HUD determines appropriate for carrying out the elements of the vacancy reduction plan. Corrective action may include, but is not limited to, suspension of grantee's authority to incur costs against the vacancy reduction funding and reimbursement, from sources other than HUD funds, of any amount spent improperly. (e) Failure to take corrective action. In cases where HUD has ordered corrective action and the grantee has failed to take the required action within a reasonable time, as specified by HUD, HUD may take one or more of the following steps: (1) Withhold vacancy reduction funds from the grantee; (2) Declare a breach of the ACC by the grantee; and (3) Any other sanctions authorized by law or regulation.
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take such corrective actions as HUD may direct. (b) Audit. The audit shall follow the guidelines prescribed in 24 CFR part 44, Non-Federal Government Audit Requirements. (Approved by the Office of Management and Budget under control number 2577-0181) {[[Page 535]]}
Sec. 968.435 Other program requirements.
In addition to the program requirements applicable to this subpart under SEC. 968.110, each PHA participating in the vacancy reduction program under this subpart shall: (a) Certify that any modernization, reconstruction, or rehabilitation activities that are funded under this subpart will be undertaken in accordance with modernization standards, as set forth in HUD Handbook 7485.2, as revised; (b) Certify that activities undertaken within vacant units will bring the affected units into compliance with the Housing Quality Standards, as set forth in SEC. 982.401 of this title, except that SEC. 982.401(j) of this title shall not apply; the applicable leadbased paint requirements in part 35 subparts A, B, L and R, of this title shall apply. (c) Provide for resident involvement, in a manner to be determined by the Secretary, in the process of applying for any funding available under this part. [59 FR 30478, June 13, 1994, as amended at 64 FR 50229, Sept. 15, 1999]
Sec. 968.428 Program closeout.
(a) Requirements for grantees. Upon completion of the activities funded in accordance with this part, the grantee shall submit to HUD, and in a form prescribed by HUD, the actual modernization cost certificate for HUD's review, audit verification, and approval. The grantee shall immediately remit any excess funds provided by HUD. If the audited modernization cost certificate discloses unauthorized expenditures, the grantee shall
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Sec. 969.101 Purpose.
24 CFR 969 Pha-Owned Projects - Continued Operation As Low-Income Housing After Completion Of Debt Service
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 535-537] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 969_PHA-OWNED PROJECTS_CONTINUED OPERATION AS LOW-INCOME HOUSING AFTER COMPLETION OF DEBT SERVICE 969.101 Purpose. 969.102 Applicability. 969.103 Definitions. 969.104 Continuing eligibility for operating subsidy. 969.105 Extension of ACC upon payment of operating subsidy. 969.106 ACC extension in absence of current operating subsidy. 969.107 HUD approval of demolition or disposition before ACC expiration. Authority: United States Housing Act of 1937 (42 U.S.C. 1437, et seq.); SEC. 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)). Source: 45 FR 52372, Aug. 7, 1980, unless otherwise noted. Redesignated at 49 FR 6714, Feb. 23, 1984.
This part provides a basis for maintaining the low-income nature of a public housing project after the completion of debt service on the project, specifying methods for extending the effective period of those provisions of the Annual Contributions Contract (ACC) which relate to project operation. Such an extension provides a contractual basis for the continued operation of the project under the Low-Income Public Housing Program, including continued eligibility for Operating Subsidy.
Sec. 969.102 Applicability.
This part applies to any low-income public housing project that is owned by a Public Housing Agency (PHA), including any Turnkey III housing, and is subject to an ACC under section 5 of the United States Housing Act of 1937 (Act). This part does not apply to the Section 8 and Section 23 Housing Assistance Payments Programs, the Section 10(c) and Section 23 Leased Housing Programs, Lanham Act and Public Works projects that remain under administration contracts, or Indian Housing projects. [56 FR 922, Jan. 9, 1991]
Sec. 969.103 Definitions.
(a) ``ACC expiration date'' means the last day of the term during which a particular public housing project is subject to all or any of the provisions of the ACC. The ACC term for a particular project expires at the latest of: (1) The end of the ``Debt Service Completion Date,'' which is the last day of a one-year period beginning with, and inclusive of, the last debt service Annual Contribution Date for the project, as determined under the ACC (e.g., if the last debt service Annual Contribution Date is June 15, 1983, the one-year period continues through the end of the day on June 14, 1984, which is the Debt Service Completion Date); or
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(2) The end of the date of full repayment of any indebtedness of the PHA to the Federal government in connection with the project; or (3) The end of the last date of an extension of the term of the ACC provisions related to project operation, as effected under SEC. 969.105 or SEC. 969.106. {[[Page 536]]} (b) ``Operating subsidy'' means additional annual contributions for operations under section 9 of the Act. amendment shall provide that the ACC provisions related to project operation shall continue in effect with respect to each project under the ACC for a period of 10 years after the end of the last PHA fiscal year for which Operating Subsidy is paid with respect to the project. (b) Consolidated ACC. Where a single ACC covers more than one project (Consolidated ACC), each annual Operating Subsidy payable under that ACC is a lumpsum amount, which is not divided into discrete amounts for the individual projects which are subject to the Consolidated ACC (see 24 CFR part 990). Accordingly, if a PHA, before submitting a request for Operating Subsidy pursuant to paragraph (a) of this section, determines that any project(s) under the Consolidated ACC will not require Operating Subsidy and should not be subject to the provisions of paragraph (a), of this section the PHA shall accompany its request with a resolution certifying that no Operating Subsidy shall be utilized with respect to such project(s) after the effective date of this rule and that all financial records and accounts shall be kept separately for such project(s). In such case, the removal of the project(s) from the request for Operating Subsidy shall be reflected by the exclusion of that number of unit months available for the project(s) when making the calculations, under 24 CFR part 990, for determination of the total amount of Operating Subsidy payable under the Consolidated ACC. In any event, no Operating Subsidy payable under a Consolidated ACC or otherwise shall be used to pay, directly or indirectly, any costs attributable to a project which is ineligible or otherwise excluded from Operating Subsidy under SEC. 969.104. Even if no Operating Subsidy is received with respect to a project, the PHA remains obligated to maintain and operate the project in accordance with the provisions of the ACC related to project operation so long as those ACC provisions remain in effect.
Sec. 969.104 Continuing eligibility for operating subsidy.
Until and after the Debt Service Completion Date for any project, HUD shall pay Operating Subsidy with respect to such project only in accordance with an ACC amendment providing for extension of the term of the ACC provisions related to project operation, pursuant to SEC. 969.105 or SEC. 969.106. The ACC amendment shall be in the form prescribed by HUD and shall specify the particular provisions of the ACC which relate to continued project operation and, therefore, remain in effect for the extended ACC term. These provisions shall include a requirement that the PHA execute and file for public record an appropriate document evidencing the PHA's covenant not to convey, encumber or make any other disposition of the project before the end of the project's ACC Expiration Date, without HUD approval.
Sec. 969.105 Extension of ACC upon payment of operating subsidy.
(a) ACC amendment. As a condition for the first HUD approval for payment of Operating Subsidy with respect to the projects under a particular ACC for a PHA fiscal year beginning after the effective date of this part, the PHA and HUD shall enter into an amendment to the ACC for all projects under the ACC. This ACC
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project pursuant to HUD approval in accordance with 24 CFR part 970. Subject to the requirements of 24 CFR part 970, HUD may authorize a PHA to demolish or dispose of public housing at any time before the ACC Expiration Date.
Sec. 969.106 ACC extension in absence of current operating subsidy.
Where Operating Subsidy under an ACC is not approved for payment during a time period which results in extension of the term of the ACC provisions related to project operation, with respect to a particular project, pursuant to SEC. 969.105, the PHA shall, at least one year before the anticipated ACC Expiration Date for the proj ect, notify HUD as to whether or not the PHA desires to maintain a basis for receiving Operating Subsidy with respect to the project after the anticipated ACC Expiration Date. This notification shall be submitted to the appropriate HUD Field Office in the form of a resolution of the PHA's Board of Commissioners. If the PHA does not desire to maintain a basis for Operating Subsidy payments with respect to the project after the anticipated ACC Expiration Date, the {[[Page 537]]} resolution shall certify that no Operating Subsidy shall be utilized with respect to the project after the effective date of this rule and that all financial records and accounts for such a project shall be kept separately. If the PHA does desire to maintain a basis for such Operating Subsidy payments, the resolution shall include the PHA's request for extension of the term of the ACC provisions related to project operation, for a period of not less than one nor more than 10 years. Upon HUD's receipt of the request, HUD and the PHA shall enter into an ACC amendment effecting the extension for the period requested by the PHA, unless HUD finds that continued operation of the project cannot be justified under the standards set forth in 24 CFR part 970 (HUD's regulation on demolition or disposition of public housing).
Sec. 969.107 HUD approval of demolition or disposition before ACC expiration.
This part is not intended to preclude or restrict the demolition or disposition of a
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24 CFR 970 Demolition Or Disposition Of Public Housing
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 537-552] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 970_PUBLIC HOUSING PROGRAM_DEMOLITION OR DISPOSITION OF PUBLIC HOUSING PROJECTS 970.1 Purpose. 970.2 Applicability. 970.3 Definitions. 970.4 General requirements for HUD approval of applications for demolition or disposition. 970.5 Displacement and relocation. 970.6 Specific criteria for HUD approval of demolition requests. 970.7 Specific criteria for HUD approval of disposition requests. 970.8 PHA application for HUD approval. 970.9 Disposition of property; use of proceeds. 970.10 Costs of demolition and relocation of displaced tenants. 970.11 Replacement Housing Plan. 970.12 Required and permitted actions prior to approval. 970.13 Resident organization opportunity to purchase. 970.14 Reports and records.
Authority: 42 U.S.C. 1437p and 3535(d). Source: 50 FR 50894, Dec. 13, 1985, unless otherwise noted.
Sec. 970.1 Purpose.
This part sets forth requirements for HUD approval of a public housing agency's application for demolition or disposition (in whole or in part) of public housing projects assisted under Title I of the U.S. Housing Act of 1937 (the ``Act''). The rules and procedures contained in 24 CFR part 85 are inapplicable. [53 FR 8067, Mar. 11, 1988, as amended at 56 FR 923, Jan. 9, 1991]
Sec. 970.2 Applicability.
(a) This part applies to public housing projects that are owned by public housing agencies (PHAs) and that are subject to Annual Contributions Contracts (ACCs) under the Act. It also applies to Section 23 bond-financed projects that have received modernization (i.e., Comprehensive Improvement Assistance Program (CIAP) or Comprehensive Grant funds (CGP)). This part does not apply to the following: (1) PHA-owned Section 8 housing, or housing leased under section 10(c) or section 23 of the Act, except for section 23 bond-financed projects that have received modernization funding under the CIAP or the Comprehensive Grant Programs; (2) Demolition or disposition before the End of the Initial Operating Period (EIOP), as determined under the ACC, of property acquired incident to the development of a public housing project; (however, this exception shall not apply to dwelling units); (3) The conveyance of public housing for the purpose of providing homeownership opportunities for lower income families under section 21 of the Act, the Turnkey III/IV or Mutual Help Homeownership Opportunity Programs, or other homeownership programs established under sections 5(h) or 6(c)(4)(D) of the Act and in existence before February 5, 1988, the date
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1992 Act are likewise covered by the requirements of section 18. [The 1992 Act took scattered-site single family public housing from under the requirements of HOPE 3 and moved it to HOPE 1.] -------(9) Demolition after conveyance of a public housing project to a non-PHA entity in accordance with an approved homeownership program under title III of the United States Housing Act of 1937 (42 U.S.C. 1437p) (HOPE 1); (10) Units leased for non-dwelling purposes for one year or less; (11) A public housing development that is conveyed by a PHA to an owner entity pursuant to an approved proposal under 24 CFR part 941, subpart F and prior to the determination of the Actual Development Cost to enable an owner entity to develop the project using the mixed-finance development method; and (12) Public housing units that are developed pursuant to the mixedfinance development method at 24 CFR part 941, subpart F, and that are reconveyed by the owner entity to the PHA. (b) Demolition or disposition that was approved by HUD before February 5, 1988, but not carried out by that date, may be carried out according to the terms of such approval, without reference to subsequent amendments to this part and without obtaining any further HUD approval. [60 FR 3716, Jan. 18, 1995; as amended at 61 FR 19719, May 2, 1996]
of enactment of the 1987 Act. (Where a plan {[[Page 538]]} submitted by the PHA for homeownership includes a component of demolition, the plan must meet the requirements of section 18 and this part.); (4) The leasing of dwelling or nondwelling space incident to the normal operation of the project for public housing purposes, as permitted by the ACC; (5) The reconfiguration of the interior space of buildings (e.g., moving or removing interior walls to change the design, sizes, or number of units) without ``demolition'', as defined in SEC. 970.3. (This includes the conversion of bedroom size, occupancy type, changing the status of unit from dwelling to nondwelling.); (6) Easements, rights-of-way and transfers of utility systems incident to the normal operation of the development for public housing purposes, as permitted by the ACC; (7) A whole or partial taking by a public or quasi-public entity through the exercise of its power of eminent domain; however, HUD requirements with respect to the replacement housing requirement for one-for-one dwelling units shall be followed (see HUD Handbook 7486.1, Demolition, Disposition and Conversion); (8) Disposition of a public housing project in accordance with an approved homeownership program under title III of the United States Housing Act of 1937 (42 U.S.C. 1437p) (Hope 1); 1 -------\1\ In keeping with section 412(b) of the National Affordable Housing Act (Pub.L. 101-625), the provisions of this part do not apply to the disposition of a public housing project in accordance with an approved homeownership program under title III of the United States Housing Act of 1937, as added by section 411 of that legislation, (HOPE 1 for Public and Indian Housing Homeownership). In the case of a HOPE 1 proposal from a PHA involving partial or total demolition of units, this part does apply. HOPE 3 proposals involving public housing units approved prior to the
Sec. 970.3 Definitions.
Act means the United States Housing Act of 1937. Chief Executive Officer of a unit of general local government means the elected official or the legally designated official, who has the primary responsibility for the conduct of that entity's governmental affairs. Examples of the ``chief executive officer of a unit of general local government'' are: the elected mayor of a municipality; the elected county executive of a county; the chairperson of a county commission or
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board in a county that has no elected county executive; and the official designated pursuant to law by the governing body of a unit of general local government. Demolition means the razing, in whole or in part, of one or more permanent buildings of a public housing project. Disposition means the conveyance or other transfer by the PHA, by sale or other transaction, of any interest in the real estate of a public housing {[[Page 539]]} project, subject to the exceptions stated in SEC. 970.2. [50 FR 50894, Dec. 13, 1985, as amended at 60 FR 3716, Jan. 18, 1995]
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Sec. 970.4 General requirements for HUD approval of applications for demolition or disposition.
HUD will not approve an application for demolition or disposition unless: (a) The application has been developed in consultation with tenants of the project involved, any tenant organizations for the project, and any PHA-wide tenant organizations that will be affected by the demolition or disposition; (b) Environmental review. Activities under this part are subject to HUD environmental regulations in part 58 of this title. However, HUD may make a finding in accordance with SEC. 58.11(d) and may itself perform the environmental review under the provisions of part 50 of this title if a PHA objects in writing to the responsible entity's performing the review under part 58. (c) [Reserved] (d) The public housing agency has developed a replacement housing plan, in accordance with SEC. 970.11, and has obtained a commitment for the funds necessary to carry out the plan over the approved schedule of the plan. To the extent such funding is not provided from other sources (e.g., State or local programs or proceeds of disposition), HUD approval of the application for demolition or disposition is conditioned on HUD's agreement to
commit the necessary funds (subject to availability of future appropriations). (e) The PHA has complied with the offering to resident organizations, as required under SEC. 970.13. (f) The PHA has prepared a certification regarding relocation of residents, in accordance with SEC. 970.5(h)(1). If relocation is required, the PHA must submit a relocation plan in accordance with SEC. 970.5. (g) The PHA has made the appropriate certifications regarding site and neighborhood standards, in accordance with SEC. 970.11(h) (2) and (4). [50 FR 50894, Dec. 13, 1985, as amended at 53 FR 30987, Aug. 17, 1988; 60 FR 3717, Jan. 18, 1995; 68 FR 56131, Sept. 29, 2003]
Sec. 970.5 Displacement and relocation.
(a) Relocation of displaced tenants on a nondiscriminatory basis. Tenants who are to be displaced as a result of demolition or disposition must be offered opportunities to relocate to other comparable/suitable (see HUD Handbook 1378, Tenant Assistance, Relocation and Real Property Acquisition) decent, safe, sanitary, and affordable housing (at rents no higher than permitted under the Act,) which is, to the maximum extent practicable, housing of their choice, on a nondiscriminatory basis, without regard to race, color, religion (creed), national origin, handicap, age, familial status, or sex, in compliance with applicable Federal and State laws. (b) Relocation resources. Relocation may be to other publicly assisted housing. Housing assisted under Section 8 of the Act, including housing available for lease under the Section 8 Housing Voucher Program, may also be used for relocation, provided the PHA ensures that displaced tenants are provided referrals to comparable/suitable relocation dwelling units where the family's share of the rent to owner following relocation will not exceed the total tenant payment, as calculated in accordance with
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or HOME funds (part 91 of this title) are used to pay any part of the cost of the demolition or the cost of a project (defined in paragraph (j) of this section) for which the property is acquired, the transaction is subject to the Residential Antidisplacement and Relocation Assistance Plan, as described in the cited regulations. (e) Relocation assistance for other displaced persons. Whenever the displacement of a residential tenant (family, individual or other household) occurs in connection with the disposition of the real property, but the conveyance is not for a Federal or federally assisted project (and is, therefore, not covered by the URA), the displaced tenant shall be eligible for the following relocation assistance: (1) Advance written notice of the expected displacement. The notice shall be provided as soon as feasible, describe the assistance to be provided and the procedures for obtaining the assistance; and contain the name, address and phone number of an official responsible for providing the assistance; (2) Other advisory services, as appropriate, including counseling and referrals to suitable, decent, safe, and sanitary replacement housing. Minority persons also shall be given, if possible, referrals to suitable decent, safe and sanitary replacement dwellings that are not located in an area of minority concentration; (3) Payment for actual reasonable moving expenses, as determined by the PHA; (4) The opportunity to relocate to a suitable, decent, safe and sanitary dwelling unit at a rent that does not exceed that permitted under section 3(a) of the 1937 Act. All or a portion of the assistance may be provided under section 8 of the 1937 Act; and (5) Such other Federal, State or local assistance as may be available. (f) Temporary relocation. Residential tenants who will not be required to move permanently, but who must relocate temporarily (e.g., to permit property repairs), shall be provided:
SEC. 813.107 of this title. If the PHA provides referrals to suitable/comparable relocation housing (comparable housing if the displacement is subject to the URA) and a tenant with a rental voucher elects to lease a housing unit where the family's share of rent to owner exceeds the amount calculated in accordance with SEC. 813.107 of this title, the tenant will be responsible for the difference between the voucher payment standard and the rent to owner. If there are no units with rents at or below the voucher payment standard to which the PHA may refer families, then the PHA cannot use vouchers as a relocation housing source. (c) Applicability of URA rules. (1) The displacement of any person (household, business or nonprofit organization) as a direct result of acquisition, rehabilitation, or demolition for a Federal or federally assisted project (defined in paragraph (j) of this section) is subject to the Uniform Relocation Assistance and Real Property Acquisition Policies Act {[[Page 540]]} of 1970, as amended, (URA) (42 U.S.C. 4601-4655) and implementing regulations at 49 CFR part 24. Therefore, if the PHA demolishes the property, or disposes of it to a Federal agency or to a person or entity that is acquiring the property for a federally assisted project, the demolition or acquisition is subject to the URA, and any person displaced (as described in paragraph (i) of this section) as a result of such action is eligible for relocation assistance at the levels described in, and in accordance with the requirements of 49 CFR part 24. (2) As described in SEC. 970.11, public housing units that are demolished must be replaced. Any person displaced (see paragraph (i) of this section) as a direct result of acquisition, demolition or rehabilitation for a project receiving Federal financial assistance (e.g., ACC) that provides the required replacement housing, must be provided relocation assistance at the levels described in, and in accordance with the requirements of 49 CFR part 24. (d) Applicability of antidisplacement plan. If CDBG funds (part 570 of this title),
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(1) Reimbursement for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including the cost of moving to and from the temporary housing, any increase in monthly rent/ utility costs, and the cost of reinstalling telephone and cable TV service. (2) Appropriate advisory services, including reasonable advance written notice of: (i) The date and approximate duration of the temporary relocation; (ii) The suitable, decent, safe and sanitary housing to be made available for the temporary period; (iii) The terms and conditions under which the tenant may lease and occupy a suitable, decent, safe and sanitary dwelling in the building/ complex following completion of the repairs; and (iv) The provision for reimbursement of out-of-pocket expenses (see paragraph (f)(1) of this section). (g) Appeals. A person who disagrees with the PHA's determination concerning whether the person qualifies as a ``displaced person'' or the amount of the relocation assistance for which the person is eligible, may file a written appeal of that determination with the PHA. A person who is dissatisfied with the PHA's determination on his or her appeal may submit a written request {[[Page 541]]} for review of the PHA's determination to the HUD Field Office. (h) Responsibility of PHA. (1) The PHA shall certify that it will comply with the URA, implementing regulations at 49 CFR part 24, and the requirements of this section, and shall ensure such compliance, notwithstanding any third party's contractual obligation to the PHA to comply with these provisions. (2) The cost of required relocation assistance is an eligible project cost in the same manner and to the same extent as other project costs. (See definition of ``project'' in paragraph (j) of this section.) Such costs
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may also be paid for with funds available from other sources. (3) The PHA shall maintain records in detail sufficient to demonstrate such compliance. The PHA shall maintain data on the race, ethnic, gender, and handicap status of displaced persons. (i) Definition of displaced person. (1) General definition. For purposes of this section, the term ``displaced person'' means any person (household, business, nonprofit organization, or farm) that moves from real property, or moves personal property from real property, permanently, as a direct result of acquisition, rehabilitation, or demolition for a Federal or federally assisted project. (2) Persons who qualify. The term ``displaced person'' includes, but may not be limited to: (i) A person who moves permanently from the real property after the PHA, or the person acquiring the property, issues a vacate notice to the person, or refuses to renew an expiring lease in order to evade the responsibility to provide relocation assistance, if the move occurs on or after the date of HUD approval of the demolition or disposition; (ii) Any person who moves permanently, including a person who moves before the date of HUD approval of the demolition or disposition, if HUD or the PHA determines that the displacement resulted from the demolition or disposition of the property and is subject to the provisions of this section; or (iii) A tenant-occupant of a dwelling who moves permanently from the building/complex on or after the date HUD approves the demolition or disposition, if the move occurs before the tenant is provided written notice offering him or her the opportunity to lease and occupy a suitable, decent, safe, and sanitary dwelling in the same building/ complex, under reasonable terms and conditions, upon completion of the project. Such reasonable terms and conditions shall include a monthly rent and estimated average monthly utility costs that do not
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``displaced person'' (or for assistance under this section) as a result of the project; (iii) The person is ineligible under 49 CFR 24.2(g)(2); or (iv) HUD determines that the person was not displaced as a direct result of an action covered by this section. (j) Definition of project. For purposes of this section, the term ``project'' means one or more activities (e.g., real property acquisition, demolition or construction) paid for in whole or in part with Federal financial assistance. Two or more activities that are integrally related, each essential to the other(s), are considered one project, whether or not all of the component activities are federally assisted. (k) Definition of initiation of negotiations. For purposes of providing the appropriate notices and determining the formula for computing a replacement housing payment under the URA to a tenant displaced from a dwelling as a direct result of demolition or private owner acquisition, the term ``initiation of negotiations'' means HUD approval of the demolition or disposition under this part. [60 FR 3717, Jan. 18, 1995]
exceed that permitted under section 3(a) of the 1937 Act. (iv) A tenant-occupant of a dwelling who is required to relocate temporarily and does not return to the building/complex, if either: (A) The tenant is not offered payment for all reasonable out-ofpocket expenses incurred in connection with such temporary relocation (including the cost of moving to and from the temporarily occupied unit, any increase in rent/utility costs, and the cost of reinstalling telephone and cable TV service). (B) Other conditions of the temporary relocation are not reasonable. (v) A tenant-occupant of a dwelling who moves from the building/ complex permanently after he or she has been required to move to another unit in the same building/complex if either: (A) The tenant is not offered reimbursement for all reasonable outof-pocket expenses incurred in connection with the move; or (B) Other conditions of the move are not reasonable. (3) Persons not eligible. Notwithstanding the provisions of paragraphs (i)(1) and (i)(2) of this section, a person does not qualify as a ``displaced person'' (and is not eligible for relocation assistance under this section), if: (i) The person has been evicted for serious or repeated violation of the terms and conditions of the lease or occupancy agreement, violation of applicable Federal, State or local law, or other good cause, and the PHA determines that the eviction was not undertaken for the purpose of evading the obligation to provide relocation assistance; (ii) The person moved into the property after the submission of the application for the demolition or disposition and, before commencing occupancy, received written notice of the project, its possible impact on the person (e.g., the {[[Page 542]]} person may be displaced, temporarily relocated, or suffer a rent increase) and the fact that he or she would not qualify as a
Sec. 970.6 Specific criteria for HUD approval of demolition requests.
In addition to other applicable requirements of this part, HUD will not approve an application for demolition unless HUD determines that one of the following criteria is met: (a) In the case of demolition of all or a portion of a project, the project, or portion of the project, is obsolete as to physical condition, location, or other factors, making it unusable for housing purposes and no reasonable program of modifications, is feasible to return the project or portion of the project to useful life. The Department generally shall not consider a program of modifications to be reasonable if the costs of such program exceed 90 percent of total development cost (TDC). Major problems indicative of obsolescence are--
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(1) As to physical condition: Structural deficiencies (e.g. settlement of earth below the building caused by inadequate structural fills, faulty structural design, or settlement of floors), substantial deterioration (e.g., severe termite damage or damage caused by extreme weather conditions), or other design or site problems (e.g., severe erosion or flooding); (2) As to location: physical deterioration of the neighborhood; change from residential to industrial or commercial development; or environmental conditions as determined by HUD environmental review in accord with part 50 of this title, which jeopardize the suitability of the site or a portion of the site and its housing structures for residential use; (3) Other factors which have seriously affected the marketability, usefulness, or management of the property. (b) In the case of demolition of only a portion of a project, the demolition will help to assure the useful life of the remaining portion of the project (e.g., to reduce project density to permit better access by emergency, fire, or rescue services). [60 FR 3719, Jan. 18, 1995]
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Sec. 970.7 Specific criteria for HUD approval of disposition requests.
(a) In addition to other applicable requirements of this part, HUD will not approve a request for disposition unless HUD determines that retention is not in the best interests of the tenants and the PHA because at least one of the following criteria is met: (1) Developmental changes is the area surrounding the project (e.g., density, or industrial or commercial development) adversely affect the health or safety of the tenants or the feasible operation of the project by the PHA. (2) Disposition will allow the acquisition, development, or rehabilitation of other properties that will be more efficiently or effectively operated as lower income housing projects, and that will
preserve the total amount of lower income housing stock available to the community. A PHA must be able to demonstrate to the satisfaction of HUD that the additional units are being provided in connection with the disposition of the property. {[[Page 543]]} (3) There are other factors justifying disposition that HUD determines are consistent with the best interests of the tenants and the PHA and that are not inconsistent with other provisions of the Act. As an example, if the property meets any of the criteria for demolition under SEC. 970.6, it may be disposed of under this criterion (SEC. 970.7(a)(3)), subject to conditions that HUD may impose (e.g., demolition to follow disposition in order to assure abatement of a threat to safety or health). (b) In the case of disposition of property other than dwelling units, (1) the property is determined by HUD to be excess to the needs of the project (after EIOP), or (2) the disposition of the property is incidental to, or does not interfere with, continued operation of the remaining portion of the project. [50 FR 50894, Dec. 13, 1985, as amended at 53 FR 30988, Aug. 17, 1988; 60 FR 3719, Jan. 18, 1995]
Sec. 970.8 PHA application for HUD approval.
Written approval by HUD shall be required before the PHA may undertake any transaction involving demolition or disposition. To request approval, the PHA shall submit an application to the appropriate HUD Field Office which includes the following: (a) A description of the property involved; (b) A description of, as well as a timetable for, the specific action proposed (including, in the case of disposition, the specific method proposed); (c) A statement justifying the proposed demolition or disposition under one or more of the applicable criteria of SEC. 970.6 or SEC. 970.7;
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(k) The estimated balance of project debt, under the ACC, for development and modernization; (l) In the case of disposition, an estimate of the fair market value of the property, established on the basis of one independent appraisal unless, as determined by HUD, (1) more than one appraisal is warranted, or (2) another method of valuation is clearly sufficient and the expense of an independent appraisal is unjustified because of the limited nature of the property interest involved or other available data; (m) In the case of disposition, estimates of the gross and net proceeds to be realized, with an itemization of estimated costs to be paid out of gross proceeds and the proposed use of any net proceeds in accordance with SEC. 970.9; (n) A copy of a resolution by the PHA's Board of Commissioners approving the application; {[[Page 544]]} (o) If determined to be necessary by HUD, an opinion by the PHA's legal counsel that the proposed action is consistent with applicable requirements of Federal, State, and local laws; and (p) Any additional information necessary to support the application and assist HUD in making determinations under this part. (Approved by the Office of Management and Budget under control number 2577-0075) [50 FR 50894, Dec. 13, 1985, as amended at 60 FR 3719, Jan. 18, 1995]
(d) If applicable, a plan for the relocation of tenants who would be displaced by the proposed demolition or disposition (see SEC. 970.5). The relocation plan must at least indicate: (1) The number of tenants to be displaced; (2) What counseling and advisory services the PHA plans to provide; (3) What housing resources are expected to be available to provide housing for displaced tenants; (4) An estimate of the costs for counseling and advisory services and tenant moving expenses, and the expected source for payment of these costs (see SEC. Sec. 970.9); and (5) The minimum official notice that the PHA will give tenants before they are required to move; (e) A description of the PHA's consultations with tenants and any tenant organizations (as required under SEC. 970.4(a)), with copies of any written comments which may have been submitted to the PHA and the PHA's evaluation of the comments; (f) A replacement housing plan, as required under SEC. 970.11, and approved by the unit of general local government which approval shall be provided by the chief executive officer of the jurisdiction in which the project is located (e.g., the mayor or the county executive), indicating approval of the replacement plan. (g) Evidence of compliance with the offering to resident organizations, as required under SEC. 970.13. (h) A certification regarding relocation of residents, in accordance with SEC. 970.5(h)(1). (i) Appropriate certifications regarding site and neighborhood assessment, in accordance with SEC. Sec. 970.11(h) (2), (3), and (4). (j) Appropriate certification regarding compliance with environmental authorities, where required in accordance with SEC. 970.4(c).
Sec. 970.9 Disposition of property; use of proceeds.
(a) Where HUD approves the disposition of real property of a project, in whole or in part, the PHA shall dispose of it promptly by public solicitation of bids for not less than fair market value, unless HUD authorizes negotiated sale for reasons found to be in the best interests of the PHA or the Federal Government, or sale for less than fair market value (where permitted by State law), based on commensurate public
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benefits to the community, the PHA or the Federal Government justifying such an exception. Reasonable costs of disposition, and of relocation of displaced tenants allowable under SEC. 970.5, may be paid by the PHA out of the gross proceeds, as approved by HUD. (b) Net proceeds, including any interest earned on the proceeds, (after payment of HUD-approved costs of disposition and relocation under paragraph (a) of this section) shall be used, subject to HUD approval, as follows: (1) For the retirement of outstanding obligations, if any, issued to finance original development or modernization of the project; and (2) Thereafter, to the extent that any net proceeds remain, for the provision of housing assistance for low-income families, through such measures as modernization of low-income housing or the acquisition, development or rehabilitation of other properties to operate as lowincome housing. (c) In the case of scattered-site housing of a public housing agency, the net proceeds of a disposition shall be used for the retirement of outstanding obligations issued to finance original development or modernization of the project, in an amount that bears the same ratio to the total of such costs and obligations as the number of units disposed of bears to the total number of units of the project at the time of disposition. For example, in cases where debt has not been forgiven, if a development project of ten units that cost $100,000 has one unit disposed of for $10,000, then there would be no net proceeds after paying off the proportional cost ($100,000 divided by 10=$10,000/ unit) of the project. If, however, the unit was disposed of and net proceeds were $12,000, there would be $2,000 available that the PHA would use for the provision of housing assistance for lower income families. Where debt has been forgiven, all the net proceeds may be used by the PHA for the provision of low income housing assistance.
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[50 FR 50894, Dec. 13, 1985, as amended at 53 FR 30988, Aug. 17, 1988; 60 FR 3719, Jan. 18, 1995]
Sec. 970.10 Costs of demolition and relocation of displaced tenants.
Where HUD has approved demolition of a project, or a portion of a project, and the proposed action is part of a modernization program under the Comprehensive Improvement Assistance Program (24 CFR part 968), the costs of demolition and of relocation of displaced tenants may be included in the modernization budget.
Sec. 970.11 Replacement housing plan.
(a) One-for-one replacement. HUD may not approve an application or furnish assistance under this part unless the PHA submitting the application for demolition or disposition also submits a plan for the provision of an additional decent, safe, sanitary, and affordable rental dwelling unit (at rents no higher than permitted under the Act) for each public housing dwelling unit to be demolished or disposed of under the application, except as provided in paragraph (j) of this section. A replacement housing plan may provide for the location of the replacement housing outside the political boundaries of the locality of the PHA, provided all relevant program requirements are satisfied including the approval of the replacement housing plan {[[Page 545]]} by the unit of general local government in which the project being demolished or disposed is located. In order to assure that all program requirements are satisfied, the PHA must enter into any necessary agreements, including where applicable, the execution of a Cooperation Agreement between the PHA and the locality in which the replacement housing will be located, prior to submission of the replacement housing plan to HUD for approval. In addition, the PHA must ensure that such agreements provide that the families
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Federal program, are not eligible as replacement housing under paragraph (a)(3) of this section.); (4) The acquisition or development of dwelling units assisted under a State or local government program that provides for project-based rental assistance comparable in terms of eligibility, contribution to rent, and length of assistance contract (not less than 15 years) to assistance under section (8)(b)(1) of the Act; or (5)(i) The use of 15-year tenant-based assistance under section 8 of the Act, (excluding rental vouchers under section 8(o)), under the conditions described in paragraph (b) of this section, to the extent available, or if such assistance is not available, in the case of an application proposing the demolition or disposition of 200 or more dwelling units in a development, the use of tenant-based assistance under section 8 (excluding rental vouchers under section 8(o)) having a term of not less than 5 years. (ii) However, in the case of an application proposing demolition or disposition of 200 or more units, not less than 50 percent of the dwelling units for replacement housing shall be provided through the acquisition or development of additional public housing dwelling units or through project-based assistance, and not more than 50 percent of the additional dwelling units shall be provided through tenant-based assistance under section 8 (excluding vouchers) having a term of not less than 5 years. The requirements of SEC. 970.11(b) do not apply to applications for demolition or disposition of 200 or more units that propose the use of tenant-based assistance under section 8 having a term of not less than 5 years for the replacement of not more than {[[Page 546]]} 50 percent of the units to be demolished or disposed of. (b) Conditions for use of tenant-based assistance. Fifteen-year tenant-based assistance under section 8 may be approved under the replacement plan only if provisions listed in paragraphs (b)(1) through (3) of this section are met.
selected for occupancy in the replacement housing will be families who would have been eligible for occupancy in the replacement housing if it had been replaced in the same locality as the project being demolished or disposed. The plan must include any one or combination of the following: (1) The acquisition or development of additional public housing dwelling units; (2) The use of 15-year project-based assistance under section 8, to the extent available, or if such assistance is not available, in the case of an application proposing demolition or disposition of 200 or more dwelling units in a development, the use of available project-based assistance under section 8 having a term of not less than 5 years; (3) The use of not less than 15-year project-based assistance under other Federal programs, to the extent available, or if such assistance is not available, in the case of an application proposing the demolition or disposition of 200 or more dwelling units in a development, the use of available projectbased assistance under other Federal programs having a term of not less than 5 years. (NOTE: In the case of 15-year project based assistance under other Federal programs, the Department has determined that low-income housing credits under Section 42 of the Internal Revenue Service Code is a Federal program providing 15year project-based assistance and, therefore, qualifies as a source of replacement housing. Any replacement housing plan proposing the use of these credits must assure that the lowincome housing units in the lowincome housing credit project which are designated as replacement housing will be reserved for low-income families for the requisite period. Units which at the time of allocation of the credit are also receiving Federal assistance under Section 8 (except tenant-based assistance) or Section 23 of the Act, or Section 236, 221(d)(3) BMIR or Section 221(d)(5) of the National Housing Act (12 U.S.C. 1701 et seq.), or Section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s), or other similar
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(1) There is a finding by HUD that replacement with project-based assistance (including public housing, as well as other types of projectbased assistance under paragraph (a) of this section) is not feasible under the feasibility standards established for projectbased assistance; that the supply of private rental housing actually available to those who would receive tenant-based assistance under the plan is sufficient for the total number of rental certificates and rental vouchers available in the community after implementation of the plan; and that this available housing supply is likely to remain available for the full 15-year term of the assistance; (2) HUD's findings under paragraph (b)(1) of this section are based on objective information, which must include rates of participation by landlords in the Section 8 program; size, condition, and rent levels of available rental housing as compared to Section 8 standards; the supply of vacant existing housing meeting the Section 8 housing quality standards with rents at or below the fair market rent or the likelihood of adjusting the fair market rent; the number of eligible families waiting for public housing or housing assistance under Section 8; the extent of discrimination practiced against the types of individuals or families to be served by the assistance; an assessment of compliance with civil rights laws and related program requirements; and such additional data as HUD may determine to be relevant in particular circumstances; and (3) To justify a finding under paragraph (b)(1) of this section, the PHA must provide sufficient information to support both parts of the finding--why project-based assistance is infeasible and how the conditions for tenant-based assistance will be met, based on the pertinent data from the local housing market, as prescribed in paragraph (b)(2) of this section. The determination as to the lack of feasibility of project-based assistance must be based on the standards for feasibility stated in the respective regulations which govern each type of eligible project-based program identified in
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paragraph (a) of this section, including public housing under paragraph (a)(1) of this section as well as the other types of eligible Federal, State and local programs of projectbased assistance under paragraphs (a)(2) through (4) of this section. A finding of lack of feasibility may thus be made only if the applicable feasibility standards cannot be met under any of those project-based programs, or any combination of them. For example, with regard to additional public housing development, feasibility would be determined by reference to part 941 of this chapter and any other applicable regulations and requirements, to include consideration of such factors as local needs for new construction or rehabilitation, availability of suitable properties for acquisition or sites for construction, and HUD determinations under cost containment policies. With regard to Section 8 programs involving rehabilitation, an example of a major feasibility factor would be the prospects for participation of private owners willing to meet the rehabilitation requirements. (c) Approval of unit of general local government. The plan must be approved by the unit of general local government in which the project proposed for demolition or disposition is located, which approval shall be provided by the chief executive officer (e.g., the mayor or the county executive). (d) Schedule for replacement housing plan. (1) The plan must include a schedule for carrying out all its terms within a period consistent with the size of the proposed demolition or disposition, except that the schedule for completing the plan shall in no event exceed 6 years from the date specified to begin plan implementation, which is the date of HUD approval of the demolition or disposition application. (2) Where demolition or disposition will occur in phases, the schedule shall provide for completing the plan within six years from the date of the HUD approval letter for a specific demolition {[[Page 547]]} or disposition action requested. ``Completion'' does not mean that the replacement housing must be built or
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disposition, that once the site is identified, the PHA will comply with the site and neighborhood standards applicable for those programs. (2) If units under the Public Housing Development Program or the Section 8 project-based assistance program have been requested as replacement housing in the PHA's application and the PHA plans to build back on the same site, the PHA shall comply with the site and neighborhood standards applicable for those programs when the demolition or disposition application is submitted to HUD. A complete site and neighborhood standards review shall be done by HUD subsequent to the submission of the demolition or disposition application but prior to approval. (3)(i) If the replacement housing units are to be provided under a State or local program, and the site is known (including building back on the same site), the PHA is required to comply with site and neighborhood standards comparable to part 882 of this title when the demolition or disposition application is submitted to HUD. A complete site and neighborhood standards review shall be done by HUD subsequent to the submission of the demolition or disposition application but prior to approval. (ii) However, if the site is not known, the PHA shall include in the application for demolition or disposition a certification that it will comply with site and neighborhood standards comparable to part 882 of this title once the site is known. (iii) In the case of replacement housing funded by State or local government funds, the PHAs must demonstrate in the application that it has a commitment for funding the replacement housing. (4)(i) If the replacement housing units are to be provided out of the proceeds of the disposition of public housing property, and the site is known (including building back on the same site), the PHA is required to comply with site and neighborhood standards comparable to part 941 of this chapter (or under part 882 of this title in the case of use of Section 8 assistance) {[[Page 548]]}
rehabilitated within the six years. For replacement units developed under the public housing development program, the completion of the plan would be units that have reached the stage of notice to proceed for conventional units and contract of sale for Turnkey units. (e) Housing the same number of individuals and families. The plan must include a method which ensures that at least the same total number of individuals and families will be provided housing, allowing for replacement with units of different sizes to accommodate changes in local priority needs, as determined by the PHA and reviewed and approved by HUD as a part of the demolition or disposition application. (f) Relocation plan. Where existing occupants will be displaced, the plan must include a relocation plan in accordance with SEC. Sec. 970.5 and 970.8(d). (g) Assurances regarding relocation. The plan must prevent the taking of any action to demolish or dispose of any unit until the tenant of the unit is relocated in accordance with SEC. 970.5. This does not preclude actions permitted under SEC. 970.12, actions required under this part for development and submission of the PHA's application for HUD approval of demolition or disposition, or actions required to carry out a relocation plan which has been approved by HUD in accordance with SEC. Sec. 970.5 and 970.8(d). (h) Site and neighborhood standards assessment. With respect to replacement housing, PHAs must comply with site and neighborhood standards, as follows: (1) If units under the Public Housing Development Program or the Section 8 project-based assistance program have been requested as replacement housing in the PHA's application, except when the PHA plans to build back on the same site, the site and neighborhood standards applicable for those programs will apply and be assessed at the appropriate time as required by that program rule or handbook and not at the time of the demolition or disposition application. The PHA must certify to HUD at the time of application for demolition or
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when the demolition or disposition application is submitted to HUD. A complete site and neighborhood standards review shall be done by HUD subsequent to the submission of the demolition or disposition application but prior to approval. (ii) However, if the site is not known, the PHA shall include in the application for demolition or disposition a certification that it will comply with site and neighborhood standards comparable to part 941 of this chapter or under part 882 of this title once the site is known. (i) Assurances regarding accessibility. The plan must contain assurances that any replacement units acquired, newly constructed or rehabilitated will meet the applicable accessibility requirements set forth in SEC. 8.25 of this title. (j) Exception for replacement housing in cases of demolition. In any 5-year period, a public housing agency may demolish not more than the lesser of 5 dwelling units or 5 percent of the total dwelling units owned and operated by the public housing agency, without providing an additional dwelling unit for each public housing unit to be demolished, but only if the space occupied by the demolished unit is used for meeting the service or other needs of public housing residents. If the PHA elects to use this exception, it shall meet all other requirements of this part except SEC. 970.11. (Approved by the Office of Management and Budget under control number 2577-0075) [60 FR 3719, Jan. 18, 1995]
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for low-income families. This does not, however, mean that HUD approval under this part is required for planning activities, analysis, or consultations, such as project viability studies, comprehensive modernization planning or comprehensive occupancy planning. [53 FR 30987, Aug. 17, 1988]
Sec. 970.13 Resident organization opportunity to purchase.
(a) Applicability. (1) This section applies to applications for demolition or disposition of a development which involve dwelling units, nondwelling spaces (e.g. administration and community buildings, maintenance facilities), and excess land. (2) The requirements of this section do not apply to the following cases which it has been determined do not present appropriate opportunities for resident purchase: (i) The PHA has determined that the property proposed for demolition is an imminent threat to the health and safety of residents; (ii) The local government has condemned the property proposed for demolition; (iii) A local government agency has determined and notified the PHA that units must be demolished to allow access to fire and emergency equipment; (iv) The PHA has determined that the demolition of selected portions of the development in order to reduce density is essential to ensure the long term viability of the development or the PHA (but in no case should this be used cumulatively to avoid Section 412 requirements); (v) A public body has requested to acquire vacant land that is less than 2 acres in order to build or expand its services (e.g., a local government wishes to use the land to build or establish a police substation); or (vi) PHA seeks disposition outside the public housing program to privately finance or otherwise develop a facility to benefit low-income families (e.g., day care center,
Sec. 970.12 Required and permitted actions prior to approval.
A PHA may not take any action to demolish or dispose of a public housing project or a portion of a public housing project without obtaining HUD approval under this part. Until such time as HUD approval may be obtained, the PHA shall continue to meet its ACC obligations to maintain and operate the property as housing
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residents to organize a resident organization. The PHA should initiate its efforts to inform the residents of their right to organize as an integral part of the resident consultation requirement under SEC. 970.4(a). (c) Established Organizations. Where there are duly formed resident councils, resident management corporation, or resident cooperative at the affected development, the PHA shall follow the procedures beginning in paragraph (d) of this section. Where the affected development is fully or partially occupied, the residents must be given the opportunity to form under the procedures in paragraph (b) of this section. (d) Offer of sale to resident organizations. (1) The PHA shall make the formal offer for sale which must include, at a minimum, the information listed in this paragraph (d). All contacted organizations shall have 30 days to express an interest in the offer. The PHA must offer to sell the property proposed for demolition or disposition to the resident management corporation, the resident council or resident cooperative of the affected development under at least as favorable terms and conditions as the PHA would offer it for sale to another purchaser: (i) An identification of the development, or portion of the development, in the proposed demolition or disposition, including the development number and location, the number of units and bedroom configuration, the amount of space and use for non-dwelling space, the current physical condition (e.g., fire damaged, friable asbestos, leadbased paint evaluation results), and occupancy status (e.g., percent occupancy). (ii) In the case of disposition, a copy of the appraisal of the property and any terms of sale. (iii) A PHA disclosure and description of plans proposed for reuse of land, if any, after the proposed demolition or disposition. (iv) An identification of available resources (including its own and HUD's) to provide technical assistance to the resident management corporation, resident council or
administrative building, other types of lowincome housing). (3) In the situations listed in paragraph (a) of this section, the PHA may proceed to submit its request to demolish or dispose of the property, or the portion of the property, to HUD, in accordance with Section 18 of the United States Housing Act of 1937 and 24 CFR {[[Page 549]]} part 970 without affording an opportunity for purchase by a resident organization. However, resident consultation would be required in accordance with SEC. 970.4(a). The PHA must submit written documentation, on official stationery, with date and signatures to justify paragraphs (a)(2)(i), (ii), (iii), (iv), and (v) of this section. Examples of such documentation include: (i) A certification from a local agency, such as the fire or health department, that a condition exists in the development that is an imminent threat to residents; or (ii) A copy of the condemnation order from the local health department. If, however, at some future date, the PHA proposes to sell the remaining property described in paragraphs (a)(2)(i) through (iii) of this section, the PHA will be required to comply with this section. (b) Opportunity for residents to organize. Where the affected development does not have an existing resident council, resident management corporation or resident cooperative at the time of the PHA proposal to demolish or dispose of the development or a portion of the development, the PHA shall make a reasonable effort to inform residents of the development of the opportunity to organize and purchase the property proposed for demolition or disposition. Examples of ``reasonable effort'' at a minimum include one of the following activities: convening a meeting, sending letters to all residents, publishing an announcement in the resident newsletter, where available, or hiring a consultant to provide technical assistance to the residents. The Department will not approve any application that cannot demonstrate that the PHA has allowed at least 45 days for the
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resident cooperative of the affected development to enable the organization to better understand its opportunity to purchase the development, the development's value and potential use. (v) Any and all terms of sale that the PHA requires for the Section 18 action. (If the resident management corporation, resident council or resident cooperative of the affected development submits a proposal that is other than the terms of sale (e.g., purchase at less than fair market value with demonstrated commensurate public benefit or for the purposes of homeownership), {[[Page 550]]} the PHA may consider accepting the offer). (vi) A date by which the resident management corporation, resident council or resident cooperative of the affected development must respond to the HA's offer to sell the property proposed for demolition or disposition, which shall be no less than 30 days from the date of the official offering of the PHA. The response from the resident management corporation, resident council or resident cooperative of the affected development shall be in the form of a letter expressing its interest in accepting the PHAs written offer. (vii) A statement that the resident council, resident management corporation, and resident cooperative of the affected development will be given 60 days to develop and submit a proposal to the PHA to purchase the property and to obtain a firm financial commitment. It shall explain that the PHA shall approve the proposal from the resident council, resident management corporation or resident cooperative of the affected development, if it meets the terms of sale. However, the statement shall indicate that the PHA can consider accepting an offer from the resident council, resident management corporation or resident cooperative of the affected development that is other than the terms of sale; e.g., purchase at less than fair market value with demonstrated commensurate public benefit or for the purposes of homeownership. The statement shall explain that if the PHA
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receives more than one proposal from a resident council, resident management corporation or resident cooperative at the affected development, the PHA shall select the proposal that meets the terms of sale. In the event that two proposals from the affected development meet the terms of sale, the PHA shall chose the best proposal. (2) After the 30 day time frame for the resident council, resident management corporation, or resident cooperative of the affected development to respond to the notification letter has expired, the PHA is to prepare letters to those organizations that responded affirmatively inviting them to submit a formal proposal to purchase the property. The organization has 60 days from the date of its affirmative response to prepare and submit a proposal to the PHA that provides all the information requested in paragraph (g) of this section and meets the terms of sale. (e) PHA Review of Proposals. The PHA has up to 60 days from the date of receipt of the proposal(s) to review them and determine whether they meet the terms of sale set forth in its offer. If the resident management corporation, resident council or resident cooperative of the affected development submits a proposal that is other than the terms of sale (e.g., purchase at less than the fair market value with demonstrated commensurate public benefit or for the purposes of homeownership), the PHA may consider accepting the offer. If the terms of sale are met, within 14 days of the PHA's final decision, the PHA shall notify the resident management corporation, resident council or resident cooperative of the affected development of that fact and that the proposal has been accepted or rejected. (f) Appeals. The resident management corporation, resident council or resident cooperative of the affected development has the right to appeal the PHA's decision to the HUD field office. A letter requesting an appeal has to be made within 30 days of the decision by the PHA. The request should include copies of the proposal and any related correspondence. The field office will render a final decision within 30 days. A
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18 of the United States Housing Act of 1937 and 24 CFR part 970 do not apply, but the applicable requirements shall be those under the HOPE 1 guidelines, as set forth at 57 FR 1522, or the section 5(h) regulation, as set forth in parts 905 and 906 of this chapter. In order for a PHA to consider a proposal to purchase under section 412, using homeownership opportunities under section 5(h) or HOPE 1, the resident council, resident management corporation or resident cooperative of the affected development shall meet the provisions of this rule, including paragraphs (g)(1)(i) through (g)(1)(xii) of this section. (3) If the proposal is to purchase the property for other than the aforementioned homeownership programs or for uses other than homeownership, then the proposal must meet all the disposition requirements of Section 18 of the United States Housing Act of 1937 and 24 CFR part 970. (h) PHA obligations. (1) Prepare and disperse the formal offer of sale to the resident council, resident management corporation and resident cooperative of the affected development. (2) Evaluate proposals received and make the selection based on the considerations set forth in paragraph (b) of this section. Issuance of letters of acceptance and rejection. (3) Prepare certifications, where appropriate, as discussed in paragraph (i)(3) of this section. (4) The PHA shall comply with its obligations under SEC. 970.4(a) regarding tenant consultation and provide evidence to HUD that it has met those obligations. The PHA shall not act in an arbitrary manner and shall give full and fair consideration to any qualified resident management corporation, resident council or resident cooperative of the affected development and accept the proposal if it meets the terms of sale. (i) PHA application submission requirements for proposed demolition or disposition. (1) If the proposal from the resident organization is rejected by the PHA, and either there is no appeal by the organization or the appeal has been denied,
letter communicating the decision is to be prepared and sent to the PHA and the resident management corporation, resident council or resident cooperative of the affected development. (g) Contents of Proposal. (1) The proposal from the resident management corporation, resident council or resident cooperative of the affected development shall at a minimum include the following: (i) The length of time the organization has been in existence; (ii) A description of current or past activities which demonstrate the organization's organizational and management capability or the planned acquisition of such capability through a partner or other outside entities; (iii) A statement of financial capability; {[[Page 551]]} (iv) A description of involvement of any non-resident organization (non-profit, for profit, governmental or other entities), if any, the proposed division of responsibilities between these two, and the nonresident organization's financial capabilities; (v) A plan for financing the purchase of the property and a firm commitment for funding resources necessary to purchase the property and pay for any necessary repairs; (vi) A plan for the use of the property; (vii) The proposed purchase price in relation to the appraised value; (viii) Justification for purchase at less than the fair market value in accordance with SEC. 970.9, if appropriate; (ix) Estimated time schedule for completing the transaction; (x) The response to the PHA's terms of sale; (xi) A resolution from the resident organization approving the proposal; and (xii) A proposed date of settlement, generally not to exceed six months from the date of PHA approval of the proposal, or such period as the PHA may determine to be reasonable. (2) If the proposal is to purchase the property for homeownership under 5(h) or HOPE 1, then the requirements of Section
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the PHA shall submit its demolition or disposition application to HUD in accordance with Section 18 of the United States Housing Act of 1937 and part 970 of this chapter. The demolition or disposition application must include complete documentation that the requirements of this section have been met. PHAs must submit written documentation that the resident council, resident management corporation and tenant cooperative of the affected development have been apprised of their opportunity to purchase under this section. This documentation shall include: (i) A copy of the signed and dated PHA notification letter(s) to each organization informing them of the PHA's intention to submit an application for demolition or disposition, the right to purchase; and (ii) The responses from each organization. (2) If the PHA accepts the proposal of the resident organization, the PHA shall submit a disposition application in accordance with Section 18 of the United States Housing Act of 1937 and {[[Page 552]]} part 970 of this chapter, with appropriate justification for a negotiated sale and for sale at less than fair market value, if applicable. (3) HUD will not process an application for demolition or disposition unless the PHA provides the Department with one of the following: (i) Where no resident management corporation, resident council or resident cooperative exists in the affected development and the residents of the affected development have not formed a new organization in accordance with paragraph (b) of this section, a certification from either the executive director or the board of commissioners stating that no such organization(s) exists and documentation that a reasonable effort to inform residents of their opportunity to organize has been made; or (ii) Where a resident management corporation, resident council or resident cooperative exists in the affected
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development one of the following, either paragraph (i)(3)(ii)(A) or paragraph (i)(3)(ii)(B) of this section: (A) A board resolution or its equivalent from each resident council, resident management corporation or resident cooperative stating that such organization has received the PHA letter, and that it understands the offer and waives its opportunity to purchase the project, or portion of the project, covered by the demolition or disposition application. The response should clearly state that the resolution was adopted by the entire organization at a formal meeting; or (B) A certification from the executive director or board of commissioners of the PHA that the thirty (30) day timeframe has expired and no response was received to its offer. (Approved by the Office of Management and Budget under control number 2577-0075) [60 FR 3721, Jan. 18, 1995, as amended at 64 FR 50229, Sept. 15, 1999]
Sec. 970.14 Reports and records.
(a) After HUD approval of demolition or disposition of all or part of a project, the PHA shall keep the appropriate HUD Field Office informed of significant actions in carrying out the demolition or disposition, including any significant delays or other problems. When demolition or disposition is completed, the PHA shall submit to the Field Office a report confirming such action, certifying compliance with all applicable requirements of Federal law and regulations and, in the case of disposition, accounting for the proceeds and costs of disposition. (b) The PHA shall be responsible for keeping records of its HUDapproved demolition or disposition sufficient for audit by HUD to determine the PHA's compliance applicable requirements of Federal law and this part. (Approved by the Office of Management and Budget under control number 2577-0075)
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[50 FR 50894, Dec. 13, 1985. Redesignated at 53 FR 30987, Aug. 17, 1988. Redesignated at 60 FR 3721, Jan. 18, 1995]
24 CFR 971 Assessment Of Reasonable Revitalization Potential Public Housing
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 552-558] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 971_ASSESSMENT OF THE REASONABLE REVITALIZATION POTENTIAL OF CERTAIN PUBLIC HOUSING REQUIRED BY LAW--Table of Contents 971.1 Purpose. 971.3 Standards for identifying developments. 971.5 Long-term viability. 971.7 Plan for removal of units from public housing inventories. 971.9 Tenant and local government consultation. 971.11 Hope VI developments. 971.13 HUD enforcement authority. Appendix to Part 971--Methodology of Comparing Cost of Public Housing With Cost of Tenant-Based Assistance Authority: Pub. L. 104-134; 42 U.S.C. 3535(d). Source: 62 FR 49576, Sept. 22, 1997, unless otherwise noted.
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Sec. 971.1 Purpose.
Section 202 of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Pub.L. 104134, approved April 26, 1996) (``OCRA'') requires PHAs to identify certain distressed public housing developments that cost more than Section 8 rental assistance and cannot be reasonably revitalized. Households in occupancy that will be affected by the activities will be offered tenant-based or project-based assistance (that can include other public housing units) and will be relocated, to {[[Page 553]]} other decent, safe, sanitary, and affordable housing which is, to the maximum extent practicable, housing of their choice. After residents are relocated, the distressed developments (or affected buildings) for which no reasonable means of revitalization exists will be removed from the public housing inventory.
Sec. 971.3 Standards for identifying developments.
(a) PHAs shall use the following standards for identifying developments or portions thereof which are subject to section 202's requirement that PHAs develop and carry out plans for the removal over time from the public housing inventory. These standards track section 202(a) of OCRA. The development, or portions thereof, must: (1) Be on the same or contiguous sites. (OCRA SEC. 202(a)(1)). This standard and the standard set forth in paragraph (a)(2) of this section refer to the actual number and location of units, irrespective of HUD development project numbers. (2) Total more than 300 dwelling units. (OCRA SEC. 202(a)(2)). (3) Have a vacancy rate of at least ten percent for dwelling units not in funded, onschedule modernization. (OCRA SEC. 202(a)(3)). For this determination, PHAs and HUD shall use the data the PHA relied upon for its last Public Housing Management Assessment Program (PHMAP) certification, as reported on the
Form HUD-51234 (Report on Occupancy), or more recent data which demonstrates improvement in occupancy rates. Units in the following categories shall not be included in this calculation: (i) Vacant units in an approved demolition or disposition program; (ii) Vacant units in which resident property has been abandoned, but only if State law requires the property to be left in the unit for some period of time, and only for the period stated in the law; (iii) Vacant units that have sustained casualty damage, but only until the insurance claim is adjusted; and (iv) Units that are occupied by employees of the PHA and units that are utilized for resident services. (4) Have an estimated cost of continued operation and modernization of the developments as public housing in excess of the cost of providing tenant-based assistance under section 8 of the United States Housing Act of 1937 for all families in occupancy, based on appropriate indicators of cost (such as the percentage of total development cost required for modernization). (OCRA SEC. 202(a)(5)). (i) For purposes of this determination, the costs used for public housing shall be those necessary to produce a revitalized development as described in the paragraph (a)(5) of this section. (ii) These costs, including estimated operating costs, modernization costs and accrual needs must be used to develop a per unit monthly cost of continuing the development as public housing. (iii) That per unit monthly cost of public housing must be compared to the per unit monthly Section 8 cost. (iv) Both the method to be used and an example are included in the Appendix to this part. (5) Be identified as distressed housing that the PHA cannot assure the long-term viability as public housing through reasonable revitalization, density reduction, or achievement of a broader range of household income. (OCRA SEC. 202(a)(4)). [See SEC. 971.5.]
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operating costs that are described in paragraph (a)(2) of this section. (2) The overall projected cost of the revitalized development must not exceed the Section 8 cost under the method contained in the Appendix to this part, even if the cost of revitalization is a lower percentage of the TDC than the limits stated in paragraph (a)(1) of this section. (3) The source of funding for such a revitalization program must be identified and already available. In addition to other resources already available to the PHA, a PHA may assume that future formula funds provided through the Comprehensive Grant Program are available for this purpose, provided that they are sufficient to permit completion of the revitalization within the statutory five year time frame. (Comprehensive plans must be amended accordingly.) (b) Density. Density reduction measures would have to result in a public housing community with a density approaching that which prevails in the community for similar types of housing (typically family), or a lower density. If the development's density already meets this description, further reduction in density is not a requirement. (c) Income mix. (1) Measures generally will be required to broaden the range of resident incomes to include over time a significant mix of households with at least one full-time worker (for example, at least 20 percent with an income at least 30 percent of median area income). Measures to achieve a broader range of household incomes must be realistic in view of the site's location. Evidence of such realism typically would include some mix of incomes of other households located in the same census tract or neighborhood, or unique advantages of the public housing site. (2) For purposes of judging appropriateness of density reduction and broader range of income measures, overall size of the public housing site and its number of dwelling units will be considered. The concerns these measures would address
(b) Properties meeting the standards set forth in paragraphs (a)(1) through (3) of this section will be assumed to be ``distressed'' unless the PHA can show that the property fails the standard set forth in paragraph (a)(3) of this section for reasons that are temporary in duration and are unlikely to recur. (c) Where the PHA will demolish all of the units in a development, or the portion thereof, that is subject to section 202, section 202 requirements will be satisfied once the demolition occurs and its standards will not be applied further to the use of the site. (d) PHAs will meet the test for assuring long-term viability of identified housing only if it is probable that, after reasonable investment, for at least twenty years (or at least 30 years for rehabilitation equivalent to new construction) the development can sustain structural/system soundness and full occupancy; will not be excessively {[[Page 554]]} densely configured relative to standards for similar (typically family) housing in the community; will not constitute an excessive concentration of very low-income families; and has no other site impairments which clearly should disqualify the site from continuation as public housing.
Sec. 971.5 Long-term viability.
(a) Reasonable investment. (1) Proposed revitalization costs for viability must be reasonable. Such costs must not exceed, and ordinarily would be substantially less than, 90 percent of HUD's total development cost limit for the units proposed to be revitalized (100 percent of the total development cost limit for any ``infill'' new construction subject to this regulation). The revitalization cost estimate used in the PHA's most recent comprehensive plan for modernization is to be used for this purpose, unless a PHA demonstrates or HUD determines that another cost estimate is clearly more realistic to ensure viability and to sustain the
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generally are greater as the site's size and number of dwelling units increase. informing such families that they will receive tenant-based or project-based assistance; providing any necessary counselling with respect to the relocation, including a request for any necessary counseling funds; and assuring that such families are relocated as necessary to other decent, safe, sanitary and affordable housing which is, to the maximum extent possible, housing of their choice; (7) The displacement and relocation provisions set forth in 24 CFR 970.5. (8) A record indicating compliance with the statute's requirements for consultation with applicable public housing tenants of the affected development and the unit of local government where the public housing is located, as set forth in SEC. 971.9. (c) Section 18 of the United States Housing Act of 1937 shall not apply to demolition of developments removed from PHA inventories under this section, but shall apply to any proposed dispositions of such developments or their sites. HUD's review of any such disposition application will take into account that the development has been required to be removed from the PHA's inventory. (d) For purposes of determining operating subsidy eligibility under the Performance Funding System (PFS), the submitted plan will be considered the equivalent of a formal request to remove dwelling units from the PHA's inventory and ACC and approval (or acceptance). The PHA will receive written notification that the plan has been approved (or accepted). Units that are vacant or vacated on or after the written notification date will be treated as approved for deprogramming under SEC. 990.108(b)(1) of this chapter and also will be provided the phasedown of subsidy pursuant to SEC. 990.114 of this chapter. (Approved by the Office of Management and Budget under control number 2577-0210)
Sec. 971.7 Plan for removal of units from public housing inventories.
(a) Time frames. Section 202 is a continuing requirement, and the Secretary will establish time frames for submission of necessary information annually through publication of a Federal Register notice. (b) Plan for removal. With respect to any development that meets all of the standards listed, the PHA shall develop a plan for removal of the affected public housing units from the inventory. The plan should consider relocation alternatives for households in occupancy, including other public housing and Section 8 tenant-based assistance, and shall provide for relocation from the units as soon as possible. For planning purposes, PHAs shall assume that HUD will be able to provide in a timely fashion any necessary Section 8 rental assistance. The plan shall include: (1) A listing of the public housing units to be removed from the inventory; (2) The number of households to be relocated, by bedroom size; (3) Identification and obligation status of any previously approved CIAP, {[[Page 555]]} modernization, or major reconstruction funds for the distressed development and PHA recommendations concerning transfer of these funds to Section 8 or alternative public housing uses; (4) The relocation resources that will be necessary, including a request for any necessary Section 8 and a description of actual or potential public or other assisted housing vacancies that can be used as relocation housing; (5) A schedule for relocation and removal of units from the public housing inventory; (6) Provision for notifying families residing in the development, in a timely fashion, that the development shall be removed from the public housing inventory;
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but without approved HOPE VI revitalization plans, are fully subject to section 202 standards and requirements.
Sec. 971.9 Tenant and local government consultation.
(a) PHAs are required to proceed in consultation with affected public housing residents. PHAs must provide copies of their submissions complying with SEC. Sec. 971.3(a) (1) through (3) to the appropriate tenant councils and resident groups before or immediately after these submissions are provided to HUD. (b) PHAs must: (1) Hold a meeting with the residents of the affected sites and explain the requirements of section 202 of OCRA; (2) Provide an outline of the submission(s) complying with SEC. 971.3(a) (4) and (5) to affected residents; and (3) Provide a reasonable comment period for residents and must provide a summary of the resident comments to HUD. (c) PHAs must prepare conversion plans in consultation with affected tenants and must: (1) Hold a meeting with affected residents and provide draft copies of the plan; and (2) Provide a reasonable comment period for residents and must provide a summary of the resident comments to HUD. (d) The conversion plan must be approved by the local officials as not inconsistent with the Consolidated Plan.
Sec. 971.13 HUD enforcement authority.
Section 202 provides HUD authority to ensure that certain distressed developments are properly identified and removed from PHA inventories. Specifically, HUD may: (a) Direct a PHA to cease additional spending in connection with a development which meets or is likely to meet the statutory criteria, except as necessary to ensure decent, safe and sanitary housing until an appropriate course of action is approved; (b) Identify developments which fall within the statutory criteria where a PHA has failed to do so properly; (c) Take appropriate actions to ensure the removal of developments from the inventory where the PHA has failed to adequately develop or implement a plan to do so; and (d) Authorize or direct the transfer of capital funds committed to or on behalf of the development (including comprehensive improvement assistance, comprehensive grant amounts attributable to the development's share of funds under the formula, and major reconstruction of obsolete projects funds) to tenant-based assistance or appropriate site revitalization for the agency. Appendix to Part 971--Methodology of Comparing Cost of Public Housing With Cost of Tenant-Based Assistance I. Public Housing The costs used for public housing shall be those necessary to produce a revitalized development as described in the next paragraph. These costs, including estimated operating costs, modernization costs and costs to address accrual needs must be used to develop a per unit monthly cost of continuing the development as public housing. That per unit monthly cost of public housing must be compared to the per unit monthly Section 8 cost. The estimated cost of the continued operation and
Sec. 971.11 HOPE VI developments.
Developments with HOPE VI implementation grants that have approved HOPE VI revitalization plans will be treated as having shown the ability to achieve longterm viability with reasonable revitalization plans. Future HUD actions to approve or deny proposed HOPE VI implementation grant revitalization plans will be taken with consideration of the standards for section 202. Developments with HOPE VI planning or implementation grants, {[[Page 556]]}
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modernization as public housing shall be calculated as the sum of total operating, modernization, and accrual costs, expressed on a monthly per occupied unit basis. The costs shall be expressed in current dollar terms for the period for which the most recent Section 8 costs are available. A. Operating Costs 1. The proposed revitalization plan must indicate how unusually high current operating expenses (e.g, security, supportive services, maintenance, utilities) will be reduced as a result of postrevitalization changes in occupancy, density and building configuration, income mix and management. The plan must make a realistic projection of overall operating costs per occupied unit in the revitalized development, by relating those operating costs to the expected occupancy rate, tenant composition, physical configuration and management structure of the revitalized development. The projected costs should also address the comparable costs of buildings or developments whose siting, configuration, and tenant mix is similar to that of the revitalized public housing development. 2. The development's operating cost (including all overhead costs pro-rated to the development--including a Payment in Lieu of Taxes (PILOT) or some other comparable payment, and including utilities and utility allowances) shall be expressed as total operating costs per month, divided by the number of units occupied by households. For example, if a development will have 1,000 units occupied by households and will have $300,000 monthly in non-utility costs (including pro-rated overhead costs and appropriate P.I.L.O.T.) and $100,000 monthly in utility costs paid by the authority and $50,000 monthly in utility allowances that are deducted from tenant rental payments to the authority because tenants paid some utility bills directly to the utility company, then the development's monthly operating cost per occupied unit is $450--the sum of $300 per unit in non-utility costs, $100 per unit in direct utility costs, and $50 per unit in utility allowance costs. 3. In justifying the operating cost estimates as realistic, the plan should link the cost estimates to its assumptions about the level and rate of occupancy, the per-unit funding of modernization, any physical reconfiguration that will result from modernization, any planned changes in the surrounding neighborhood and security costs. The plan should also show whether developments or buildings in viable condition in similar neighborhoods have achieved the income mix and occupancy rate projected for the revitalized development. The plan should also show how the operating costs of the similar developments or buildings compare to the operating costs projected for the development. 4. In addition to presenting evidence that the operating costs of the revitalized development are plausible, when the perunit operating cost of the renovated development is {[[Page 557]]} more than ten percent lower than the current per-unit operating cost of the development, then the plan should detail how the revitalized development will achieve its reduction in costs. To determine the extent to which projected operating costs are lower than current operating costs, the current per-unit operating costs of the development will be estimated as follows: a. If the development has reliable operating costs and if the overall vacancy rate is less than twenty percent, then these costs will be divided by the sum of all occupied units and vacant units fully funded under PFS plus fifty percent of all units not fully funded under PFS. For instance, if the total monthly operating costs of the current development are $6.6 million and it has 1,000 occupied units and 200 vacant units not fully funded under PFS (or a 17 percent overall vacancy rate), then the $6.6 million is divided by 1100--1000 plus 50 percent of 200--to give a per unit figure of $600 per unit month. By this example, the current costs of $600 per occupied unit are at least ten percent higher than the projected costs per occupied unit of $450 for the revitalized development, and the reduction in costs would have to be detailed.
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standards, that cost amortized over twenty years (which is equivalent to fifteen years at a three percent annual real capital cost for the initial outlay). Expressed in monthly terms, the modernization cost is divided by 180 (or 15 years times 12 months). Thus, if the initial modernization outlay to meet viability standards is $60 million for 1,000 units, then the per-unit outlay is $60,000 and the amortized modernization cost is $333 per unit per month (or $60,000 divided by 180). However, when revitalization would be equivalent to new construction and the PHA thus is permitted to amortize the proposed cost over thirty years (which is equivalent to twenty-two and one-half years at a three percent annual real capital cost to the initial outlay), the modernization cost will be divided by 270, the product of 22.5 and 12, to give a cost per unit month of $222. C. Accrual The monthly per occupied unit cost of accrual (i.e., replacement needs) will be estimated by using the latest published HUD unit total development cost limits for the area and applying them to the development's structure type and bedroom distribution after modernization, then subtracting from that figure half the per-unit cost of modernization, then multiplying that figure by .02 ( representing a fifty year replacement cycle), and dividing this product by 12 to get a monthly cost. For example, if the development will remain a walkup structure containing five hundred two-bedroom occupied and five hundred three-bedroom occupied units, if HUD's Total Development Cost limit for the area is $70,000 for two-bedroom walkup structures and $92,000 for three-bedroom walkup structures, and if the per unit cost of modernization is $60,000, then the estimated monthly cost of accrual per occupied unit is $85. This is the result of multiplying the value of $51,000--the cost guideline value of $81,000 minus half the modernization value of $60,000--by .02 and then dividing by 12. D. Overall Cost The overall current cost for continuing the development as public housing is the
b.If the development currently lacks reliable cost data or has a vacancy rate of twenty percent or higher, then its current per unit costs will be estimated as follows. First, the per unit cost of the entire authority will be computed, with total costs divided by the sum of all occupied units and vacant units fully funded under PFS plus fifty percent of all vacant units not fully funded under PFS. Second, this amount will be multiplied by the ratio of the bedroom adjustment factor of the development to the bedroom adjustment factor of the Housing Authority. The bedroom adjustment factor, which is based on national rent averages for units grouped by the number of bedrooms and which has been used by HUD to adjust for costs of units when the number of bedrooms vary, assigns to each unit the following factors:.70 for 0bedroom units, .85 for 1-bedroom units, 1.0 for 2-bedroom units, 1.25 for 3-bedroom units, 1.40 for 4-bedroom units, 1.61 for 5bedroom units, and 1.82 for 6 or more bedroom units. The bedroom adjustment factor is the unit-weighted average of the distribution. For instance, if the development with one thousand occupied units had in occupancy 500 twobedroom units and 500 three-bedroom units, then its bedroom adjustment factor would be 1.125--500 times 1.0 plus 500 times 1.25, the sum divided by 1,000. Where necessary, HUD field offices will arrange for assistance in the calculation of the bedroom adjustment factors of the Housing Authority and its affected developments. c. As an example of estimating development operating costs from PHA operating costs, suppose that the Housing Authority had a total monthly operating cost per unit of $500 and a bedroom adjustment factor of .90, and suppose that the development had a bedroom adjustment factor of 1.125. Then, the development's estimated current monthly operating cost per occupied unit would be $625--or $500 times 1.25 (the ratio of 1.125 to .90). B. Modernization The cost of modernization is the initial revitalization cost to meet viability
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sum of its monthly post-revitalization operating cost estimates, its monthly modernization cost per occupied unit, and its estimated {[[Page 558]]} monthly accrual cost per occupied unit. For example, if the operating cost per occupied unit month is $450 and the amortized modernization cost is $333 and the accrual cost is $85, the overall monthly cost per occupied unit is $868. II. Tenant-Based Assistance The estimated cost of providing tenantbased assistance under Section 8 for all households in occupancy shall be calculated as the unit-weighted averaging of the monthly Fair Market Rents for units of the applicable bedroom size; plus the administrative fee applicable to newly funded Section 8 rental assistance during the year used for calculating public housing operating costs (e.g., the administrative fee for units funded from 10/1/95 through 9/30/96 is based on column C of the January 24, 1995 Federal Register, at 60 FR 4764, and the administrative fee for units funded from 10/1/96 through 9/30/97 is based on column B of the March 12, 1997 Federal Register, at 62 FR 11526); plus the amortized cost of demolishing the occupied public housing units, where the cost per unit is not to exceed ten percent of the TDC prior to amortization. For example, if the development has five hundred occupied two-bedroom units and five hundred occupied threebedroom units and if the Fair Market Rent in the area is $600 for two bedroom units and is $800 for three bedroom units and if the administrative fee comes to $46 per unit, and if the cost of demolishing 1000 occupied units is $5 million, then the per unit monthly cost of tenant based assistance is $774 ($700 for the unit-weighted average of Fair Market Rents, or 500 times $600 plus 500 times $800 with the sum divided by 1,000; plus $46 for the administrative fee; plus $28 for the amortized cost of demolition and tenant relocation (including any necessary counseling), or $5000 per unit divided by 180 in this example). This Section 8 cost would then be compared to the cost of revitalized public housing development--in the example of this section, the revitalized public housing cost of $868 monthly per occupied unit would exceed the Section 8 cost of $774 monthly per occupied unit by 12 percent. The PHA would have to prepare a conversion plan for the property. III. Detailing the Section-8 Cost Comparison: A Summary Table The Section 8 cost comparison methods are summarized, using the example provided in this section III. A. Key Data, Development: The revitalized development has 1000 occupied units. All of the units are in walkup buildings. The 1000 occupied units will consist of 500 two-bedroom units and 500 threebedroom units. The total current operating costs attributable to the development are $300,000 per month in non-utility costs, $100,000 in utility costs paid by the PHA, and $50,000 in utility allowance expenses for utilities paid directly by the tenants to the utility company. Also, the modernization cost for revitalization is $60,000,000, or $60,000 per occupied unit. This will provide standards for viability but not standards for new construction. The cost of demolition and relocation of the 1000 occupied units is $5 million, or $5000 per unit, based on recent experience.B. Key Data, Area: The unit total development cost limit is $70,000 for twobedroom walkups and $92,000 for threebedroom walkups. The twobedroom Fair Market Rent is $600 and the three-bedroom Fair Market Rent is $800. The applicable monthly administrative fee amount, in column B of the March 12, 1997 Federal Register Notice, at 62 FR 11526, is $46. C. Preliminary Computation of the PerUnit Average Total Development Cost of the Development: This results from applying the location's unit total development cost by structure type and number of bedrooms to the occupied units of the development. In this example, five hundred units are valued at $70,000 and five hundred units are valued
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at $92,000 and the unit-weighted average is $81,000. D. Current Per Unit Monthly Occupied Costs of Public Housing: 1. Operating Cost--$450 (total monthly costs divided by occupied units: in this example, the sum of $300,000 and $100,000 and $50,000-divided by 1,000 units). 2. Amortized Modernization Cost-$333 ($60,000 per unit divided by 180 for standards less than those of new construction). 3. Estimated Accrual Cost--$85 (the per-unit average total development cost minus half of the modernization cost per unit, times .02 divided by 12 months: in this example, $51,000 times .02 and then divided by 12). 4. Total per unit public housing costs-$868. E. Current per unit monthly occupied costs of section 8: 1. Unit-weighted Fair Market Rents-$700 (the unit-weighted average of the Fair Market Rents of occupied bedrooms: in this example, 500 times $600 plus 500 times $800, divided by 1000). 2. Administrative Fee--$46. 3. Amortized Demolition and Relocation Cost--$28 ($5000 per unit divided by 180). 4. Total per unit section 8 costs--$774. F. Result: In this example, because revitalized public housing costs exceed current Section 8 costs, a conversion plan for the property would be required. {[[Page 559]]}
24 CFR 972 Conversion Of Public Housing To Tenant-Based Assistance
[Code of Federal Regulations] [Title 24, Volume 4] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [Page 559-571] TITLE 24--HOUSING AND URBAN DEVELOPMENT CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PART 972_CONVERSION OF PUBLIC HOUSING TO TENANT-BASED ASSISTANCE Subpart A_Required Conversion of Public Housing Developments Purpose; Definition of ``Conversion'' 972.100 Purpose. 972.103 Definition of ``conversion.'' Required Conversion Process 972.106 Procedure for required conversion of public housing developments to tenant-based assistance. 972.109 Conversion of developments. 972.112 Relationship between required conversion and demolition/ disposition requirements. 972.115 Relationship between required conversions and HOPE VI developments. 972.118 Applicability of Uniform Relocation Act. Identifying Developments Subject To Required Conversion 972.121 Developments subject to this subpart. 972.124 Standards for identifying public housing developments subject to required conversion.
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972.127 Standards for determining whether a property is viable in the long term. Conversion Plans 972.130 Conversion plan components. 972.133 Public and resident consultation process for developing a conversion plan. 972.136 Timing of submission of conversion plans to HUD. HUD Actions With Respect To Required Conversions 972.139 HUD actions with respect to required conversions. Subpart B_Voluntary Conversion of Public Housing Developments Purpose; Definition of Conversion 972.200 Purpose. 972.203 Definition of ``conversion.'' Required Initial Assessments 972.206 Required initial assessments. Voluntary Conversion Procedure 972.209 Procedure for voluntary conversion of public housing developments to tenant-based assistance. 972.212 Timing of voluntary conversion. 972.215 Applicability of Uniform Relocation Act. Conversion Assessments 972.218 Conversion assessment components. 972.221 Timing of submission of conversion assessments to HUD. 972.224 Necessary conditions for HUD approval of conversion. Conversion Plans 972.227 Public and resident consultation process for developing a conversion plan. 972.230 Conversion plan components. 972.233 Timing of submission of conversion plans to HUD. 972.236 HUD process for approving a conversion plan. 972.239 HUD actions with respect to a conversion plan. Authority: 42 U.S.C. 1437t, 1437z-5, and 3535(d).
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Source: 66 FR 33618, June 22, 2001, unless otherwise noted.
Subpart A_Required Conversion of Public Housing Developments
Source: 68 FR 54608, Sept. 17, 2003, unless otherwise noted. Purpose; Definition of Conversion
Sec. 972.100 Purpose.
The purpose of this subpart is to implement section 33 of the United States Housing Act of 1937 (42 U.S.C. 1437z-5), which requires PHAs to annually review their public housing inventory and identify developments, or parts of developments, which must be removed from its stock of public housing operated under an Annual Contributions Contract (ACC) with HUD. This subpart provides the procedures a PHA must follow to develop and carry out a conversion plan to remove the units from the public housing inventory, including how to provide for the transition for residents of these developments to other affordable housing.
Sec. 972.103 Definition of ``conversion.''
For purposes of this subpart, the term ``conversion'' means the removal of public housing units from the inventory of a PHA, and the provision of tenant-based or projectbased assistance for the residents of the public housing units that are being removed. The term ``conversion,'' as used in this subpart, does not necessarily mean the {[[Page 560]]} physical removal of the public housing development. Required Conversion Process
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required environmental review. However, before completion of the environmental review, HUD may approve the targeted units for removal from the PHA's inventory and may authorize the PHA to undertake other activities proposed in its conversion plan that do not require environmental review (such as certain activities related to the relocation of residents), as long as the buildings in question are adequately secured and maintained. (c) For purposes of determining operating subsidy eligibility, HUD will consider the conversion plan the PHA submits to be the equivalent of a formal request to remove dwelling units from the PHA's inventory and ACC. HUD will notify the PHA in writing whether it has approved the conversion plan. Units that are vacant or vacated on or after the written notification date will be treated as approved for deprogramming under SEC. 990.108(b)(1) of this title and also will be provided any phase-down of subsidy to which the PHA is entitled pursuant to SEC. 990.114 of this title. (d) The PHA may apply for tenantbased assistance in accordance with Section 8 program requirements, and HUD will give the PHA a priority for receiving tenantbased assistance to replace the public housing units. It is HUD's policy to provide funds for one-for-one replacement housing with either public housing or tenant-based assistance, if funds are available. HUD may require that funding for the initial year be provided from the public housing Capital Fund, Operating Fund, or both.
Sec. 972.106 Procedure for required conversion of public housing developments to tenant-based assistance.
(a) A PHA must annually review its public housing inventory and identify developments, or parts of developments, which must be converted to tenant-based assistance, in accordance with SEC. Sec. 972.121972.127. (b) With respect to any public housing development that is identified under paragraph (a) of this section, the PHA generally must develop a 5-year plan for removal of the affected public housing units from the inventory, in accordance with SEC. Sec. 972.130-972.136. (c) The PHA may proceed to convert the development if HUD approves the conversion plan.
Sec. 972.109 Conversion of developments.
(a)(1) The PHA may proceed to convert the development covered by a conversion plan after receiving written approval from HUD. This approval will be separate from the approval that the PHA receives for its Annual Plan. (2) HUD anticipates that its review of a conversion plan will ordinarily occur within 90 days following submission of a complete plan by the PHA. A longer process may be required where HUD's initial review of the plan raises questions that require further discussion with the PHA. In any event, HUD will provide all PHAs with a preliminary response within 90 days following submission of a conversion plan. (b) The PHA may not demolish or dispose of units or property until completion of the required environmental review under part 58 of this title (if a responsible entity has assumed environmental responsibility for the project) or part 50 of this title (if HUD is performing the environmental review). Further, HUD will not approve a conversion plan until completion of the
Sec. 972.112 Relationship between required conversion and demolition/
disposition requirements. (a) Section 18 of the United States Housing Act of 1937 does not apply to demolition of developments removed from the inventory of the PHA under this subpart. Demolition of these developments is therefore not subject to section 18(g), which provides an exclusion from the applicability
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of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601) (URA). Accordingly, the URA will apply to the displacement of tenants as the direct result of the demolition of a development carried out pursuant to this subpart, in accordance with SEC. 972.118. With respect to any such demolition, the PHA must comply with the requirements for environmental review found at part 58 of this title. {[[Page 561]]} (b) Section 18 of the United States Housing Act of 1937 does apply to any disposition of developments removed from the inventory of the PHA under this subpart. Therefore, to dispose of property, the PHA must submit a disposition application under section 18. HUD's review of any such disposition application will take into account that the development has been required to be converted.
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Sec. 972.121 Developments subject to this subpart.
(a) This subpart is applicable to any development not identified before October 21, 1998, for conversion, or for assessment of whether such conversion is required, in accordance with section 202 of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Pub. L. 104134, approved April 26, 1996, 110 Stat. 1321-279--1321-281). Developments identified before October 21, 1998, continue to be subject to the requirements of section 202 and part 971 of this chapter until these requirements are satisfied. Thereafter, the provisions of this subpart apply to any remaining public housing on the sites of those developments. (b) The developments to which this subpart is applicable are subject to the requirements of section 33 of the United States Housing Act of 1937 (42 U.S.C. 1437z-5). (c) The provisions of this subpart cease to apply when the units in a development that are subject to the requirements of this subpart have been demolished.
Sec. 972.115 Relationship between required conversions and HOPE VI developments.
HUD actions to approve or deny proposed HOPE VI revitalization plans must be consistent with the requirements of this subpart. Developments with HOPE VI revitalization grants, but without approved HOPE VI revitalization plans, are fully subject to required conversion standards under this subpart.
Sec. 972.124 Standards for identifying public housing developments subject to required conversion.
The development, or portions thereof, must be converted if it is a general occupancy development of 250 or more dwelling units and it meets the following criteria: (a) The development is on the same or contiguous sites. This refers to the actual number and location of units, irrespective of HUD development project numbers. (b) The development has a vacancy rate of at least a specified percent for dwelling units not in funded, on-schedule modernization, for each of the last three years, and the vacancy rate has not significantly decreased in those three years. (1) For a conversion analysis performed on or before March 16, 2009, the specified
Sec. 972.118 Applicability of Uniform Relocation Act.
To the extent that tenants are displaced as a direct result of the demolition, acquisition, or rehabilitation of federallyassisted property converted pursuant to this subpart, the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601) (URA), and the implementing regulations issued by the Department of Transportation at 49 CFR part 24, apply. Identifying Developments Subject To Required Conversion
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excessively densely configured relative to other similar rental (typically family) housing in the community; can achieve a broader range of family income; and has no other site impairments that clearly should disqualify the site from continuation as public housing. (2) The development is more expensive for the PHA to operate as public housing than to provide tenant-based assistance if it has an estimated cost, during the remaining useful life of the project, of continued operation and modernization of the development as public housing in excess of the cost of providing tenant-based assistance under section 8 of the United States Housing Act of 1937 for all families in occupancy, based on appropriate indicators of cost (such as the percentage of total development cost required for modernization). (i) For purposes of this determination, the costs used for public housing must be those necessary to produce a revitalized development as described in paragraph (c)(1) of this section. (ii) These costs, including estimated operating costs, modernization costs, and accrual needs must be used to develop a per unit monthly cost of continuing the development as public housing. (iii) That per unit monthly cost of public housing must be compared to the per unit monthly Section 8 cost. (iv) The cost methodology necessary to conduct the cost comparisons for required conversions has not yet been finalized. PHAs are not required to undertake conversions under this subpart until six months after the effective date of the cost methodology, which will be announced in the Federal Register. Once effective, the cost methodology will be codified as an appendix to this part.
vacancy rate is 15 percent. For a conversion analysis performed after that date, the specified vacancy rate is 12 percent. (2) For the determination of vacancy rates, the PHA must use the data it relied upon for the PHA's latest Public Housing Assessment System (PHAS) certification, as reported on the Form HUD-51234 (report on Occupancy). Units in the following categories must not be included in this calculation: (i) Vacant units in an approved demolition or disposition program; (ii) Vacant units in which resident property has been abandoned, but only if state law requires the property to be left in the unit for some period of time, and only for the period of time stated in the law; (iii) Vacant units that have sustained casualty damage, but only until the insurance claim is adjusted; {[[Page 562]]} (iv) Units that are occupied by employees of the PHA and units that are used for resident services; and (v) Units that HUD determines, in its sole discretion, are intentionally vacant and do not indicate continued distress. (c) The development either is distressed housing for which the PHA cannot assure the long-term viability as public housing, or more expensive for the PHA to operate as public housing than providing tenant-based assistance. (1) The development is distressed housing for which the PHA cannot assure the long-term viability as public housing through reasonable revitalization, density reduction, or achievement of a broader range of household income. (See SEC. 972.127) (i) Properties meeting the standards set forth in paragraphs (a) and (b) of this section will be assumed to be ``distressed,'' unless HUD determines that the reasons a property meets such standards are temporary in duration and are unlikely to recur. (ii) A development satisfies the longterm viability test only if it is probable that, after reasonable investment, for at least 20 years (or at least 30 years for rehabilitation equivalent to new construction) the development can sustain structural/system soundness and full occupancy; will not be
Sec. 972.127 Standards for determining whether a property is viable in the long term.
In order for a property to meet the standard of long-term viability, as discussed
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in SEC. 972.124, the following criteria must be met: (a) The investment to be made in the development is reasonable. (1) Proposed revitalization costs for viability must be reasonable. Such costs must not exceed, and ordinarily would be substantially less than, 90 percent of HUD's total development cost (TDC) limit for the units proposed to be revitalized (100 percent of the total development cost limit for any ``infill'' new construction subject to this regulation). The revitalization cost estimate used in the PHA's most recent Annual Plan or 5-Year Plan is to be used for this purpose, unless the PHA demonstrates, or HUD determines, that another cost estimate is clearly more realistic to ensure viability and to sustain the operating costs that are described in paragraph (a)(2) of this section. (2) The overall projected cost of the revitalized development must not exceed the Section 8 cost under the method contained in the Appendix to this part, even if the cost of revitalization is a lower percentage of the TDC than the limits stated in paragraph (a)(1) of this section. {[[Page 563]]} (3) The source of funding for such a revitalization program must be identified and available. In addition to other resources already available to the PHA, it may assume that future formula funds provided through the Capital Fund over five years are available for this purpose. (b) Appropriate density is achieved. The resulting public housing development must have a density which is comparable to that which prevails in or is appropriate for assisted rental housing or for other similar types of housing in the community (typically family). (c) A greater income mix can be achieved. (1) Measures generally will be required to broaden the range of resident incomes over time to include a significant mix of households with at least one full-time worker. Measures to achieve a broader range of household incomes must be realistic in view of the site's location. Appropriate evidence typically would include census or other recent statistical evidence
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demonstrating some mix of incomes of other households located in the same census tract or neighborhood, or unique advantages of the public housing site. (2) For purposes of judging appropriateness of density reduction and broader range of income measures, overall size of the public housing site and its number of dwelling units will be considered. The concerns these measures would address generally are greater as the site's size and number of dwelling units increase. Conversion Plans
Sec. 972.130 Conversion plan components.
(a) With respect to any development that is identified under SEC. Sec. 972.121 through 972.127, the PHA generally must develop a 5year plan for removal of the affected public housing units from the inventory. The plan must consider relocation alternatives for households in occupancy, including other public housing and Section 8 tenantbased assistance, and must provide for relocation from the units as soon as possible. For planning purposes, the PHA must assume that HUD will be able to provide in a timely fashion any necessary Section 8 rental assistance. The plan must include: (1) A listing of the public housing units to be removed from the inventory; (2) Identification and obligation status of any previously approved modernization, reconstruction, or other capital funds for the distressed development and the PHA's recommendations concerning transfer of these funds to Section 8 or alternative public housing uses; (3) A record indicating compliance with the statute's requirements for consultation with applicable public housing tenants of the affected development and the unit of local government where the public housing is located, as set forth in SEC. 972.133; (4) A description of the plans for demolition or disposition of the public housing units; and
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(B) The family will be offered comparable housing, which may include tenant-based or project-based assistance, or occupancy in a unit operated or assisted by the PHA (if tenant-based assistance is used, the comparable housing requirement is fulfilled only upon the relocation of the family into such housing); (C) Any necessary counseling with respect to the relocation will be provided, including any appropriate mobility counseling (the PHA may finance the mobility counseling using Operating Fund, Capital Fund, or Section 8 administrative fee funding); (D) Such families will be relocated to other decent, safe, sanitary, and affordable housing that is, to the maximum extent possible, housing of their choice; (E) If the development is used as housing after conversion, the PHA must ensure that each resident may choose to remain in the housing, using tenant-based assistance towards rent; and (F) Where section 8 voucher assistance is being used for relocation, the family will be provided with the vouchers at least 90 days before displacement. (5) If the required conversion is subject to the URA, the written notice described in paragraph (b)(4) must also provide that: (i) The family will not be required to move without at least 90-days advance written notice of the earliest date by which the family may be required to move, and that the family will not be required to move permanently until the family is offered comparable housing, as provided in paragraph (b)(4)(ii)(B) of this section; (ii) Any person who is an alien not lawfully present in the United States is ineligible for relocation payments or assistance under the URA, unless such ineligibility would result in exceptional and extremely unusual hardship to a qualifying spouse, parent, or child, as provided in the URA regulations at 49 CFR 24.208; (iii) The family has a right to appeal the PHA's determination as to the family's application for relocation assistance for
(5) A relocation plan, in accordance with paragraph (b) of this section. (b) Relocation plan. The relocation plan must incorporate all of the information identified in paragraphs (b)(1) through (b)(4) of this section. In addition, if the required conversion is subject to the URA, the relocation plan must also contain the information identified in paragraph (b)(5) of this section. The relocation plan must incorporate the following: (1) The number of households to be relocated, by bedroom size, and by the number of accessible units. (2) The relocation resources that will be necessary, including a request for any necessary Section 8 funding and a description of actual or potential public or other assisted housing vacancies that can be used as relocation housing and budget for carrying out relocation activities. (3) A schedule for relocation and removal of units from the public housing inventory (including the schedule for providing actual and reasonable relocation expenses, as determined by the PHA, for families displaced by the conversion). (4) Provide for issuance of a written notice to families residing in the development in accordance with the following requirements: (i) Timing of notice. If the required conversion is not subject to the URA, {[[Page 564]]} the notice shall be provided to families at least 90 days before displacement. If the required conversion is subject to the URA the written notice shall be provided to families no later than the date the conversion plan is submitted to HUD. For purposes of a required conversion subject to the URA, this written notice shall constitute the General Information Notice (GIN) required by the URA. (ii) Contents of notice. The written notice shall include all of the following: (A) The development must be removed from the public housing inventory and that the family may be displaced as a result of the conversion;
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which the family may be eligible under this subpart and URA; (iv) Families residing in the development will be provided with the URA Notice of Relocation Eligibility or Notice of Non-displacement (as applicable) as of the date HUD approves the conversion plan (for purposes of this subpart, the date of HUD's approval of the conversion plan shall be the ``date of initiation of negotiations'' as that term is used in URA and the implementing regulations at 49 CFR part 24); and (v) Any family that moves into the development after submission of the conversion plan to HUD will also be eligible for relocation assistance, unless the PHA issues a written move-in notice to the family prior to leasing and occupancy of the unit advising the family of the development's possible conversion, the impact of the conversion on the family, and that the family will not be eligible for relocation assistance. (c) The conversion plan may not be more than a 5-year plan, unless the PHA applies for and receives approval from HUD for a longer period of time. HUD may allow the PHA up to 10 years to remove the units from the inventory, in exceptional circumstances where HUD determines that this is clearly the most cost effective and beneficial means of providing housing assistance over that same period. For example, HUD may allow a longer period of time to remove the units from the public housing inventory, where more than one development is being converted, and a larger number of families require relocation than can easily be absorbed into the rental market at one {[[Page 565]]} time, provided the housing has a remaining useful life of longer than five years and the longer time frame will assist in relocation.
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appropriate public housing residents in developing the conversion plan. (b) The PHA may satisfy the requirement for consultation with public officials by obtaining a certification from the appropriate government official that the conversion plan is consistent with the applicable Consolidated Plan. This may be the same certification as is required for the PHA Annual Plan that includes the conversion plan, so long as the certification specifically addresses the conversion plan. (c) To satisfy the requirement for consultation with the appropriate public housing residents, in addition to the public participation requirements for the PHA Annual Plan, the PHA must: (1) Hold at least one meeting with the residents of the affected sites (including the duly elected Resident Council, if any, that covers the development in question) at which the PHA must: (i) Explain the requirements of this section, especially as they apply to the residents of the affected developments; and (ii) Provide draft copies of the conversion plan to the residents; (2) Provide a reasonable comment period for residents; and (3) Summarize the resident comments for HUD, in the conversion plan, and consider these comments in developing the final conversion plan.
Sec. 972.136 Timing of submission of conversion plans to HUD.
The requirements of this section are ongoing requirements. If the PHA must submit a plan for conversion, it must submit the conversion plan as part of the PHA's Annual Plan, beginning with PHA fiscal years that commence six months after the effective date of HUD's final rule establishing the cost methodology for required conversions. HUD Actions With Respect to Required Conversions
Sec. 972.133 Public and resident consultation process for developing a conversion plan.
(a) The PHA must consult with appropriate public officials and with the
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amounts attributable to the development's share of funds under the formula, and major reconstruction of obsolete projects funds) to tenant- {[[Page 566]]} based assistance or appropriate site revitalization for the agency; and (5) Any other action that HUD determines appropriate and has the authority to undertake.
Sec. 972.139 HUD actions with respect to required conversions.
(a) HUD will take appropriate steps to ensure that distressed developments subject to this subpart are properly identified and converted. If a PHA fails to properly identify a development for required conversion, or does not submit a conversion plan for a development in the PHA Annual Plan following the Annual Plan in which the development was identified as subject to required conversion, HUD will take the actions described in paragraph (b) of this section, and may also take any or all of the actions described in paragraph (c) of this section. (b) If a PHA fails to take the conversion activities described in paragraph (a) of this section, HUD will: (1) Disqualify the PHA from HUD funding competitions; and (2) Direct the PHA to cease additional spending in connection with a development that meets, or is likely to meet the statutory criteria, except to the extent that failure to expend such amounts would endanger health or safety. (c) If a PHA fails to take the conversion activities described in paragraph (a) of this section, HUD may also take any or all of the following actions: (1) Identify developments that fall within the statutory criteria where the PHA has failed to do so properly; (2) Take appropriate actions to ensure the conversion of developments where the PHA has failed to adequately develop or implement a conversion plan; (3) Require the PHA to revise the conversion plan, or prohibit conversion, where HUD has determined that the PHA has erroneously identified a development as being subject to the requirements of this section; (4) Authorize or direct the transfer of capital or operating funds committed to or on behalf of the development (including comprehensive improvement assistance, comprehensive grant or Capital Fund
Subpart B_Voluntary Conversion of Public Housing Developments
Source: 68 FR 54619, Sept. 17, 2003, unless otherwise noted. Purpose; Definition of Conversion
Sec. 972.200 Purpose.
This subpart implements section 22 of the United States Housing Act of 1937 (42 U.S.C. 1437t). The purposes of this subpart are to: (a) Require PHAs to perform an assessment which considers developments for which conversion of public housing may be appropriate; and (b) Provide a basis for a PHA to take action for conversion on a voluntary basis.
Sec. 972.203 Definition of ``conversion.''
For purposes of this subpart, the term ``conversion'' means the removal of public housing units from the inventory of a Public Housing Agency (PHA), and the provision of tenant-based, or project-based assistance for the residents of the public housing that is being removed. The term ``conversion,'' as used in this subpart, does not necessarily mean the physical removal of the public housing development from the site. Required Initial Assessments
Sec. 972.206 Required initial assessments.
(a) General. A PHA must conduct a required initial assessment (which consists of the certification described in paragraph
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(b) of this section), in accordance with this section, once for each of its developments, unless: (1) The development is subject to required conversion under 24 CFR part 971; (2) The development is the subject of an application for demolition or disposition that has not been disapproved by HUD; (3) A HOPE VI revitalization grant has been awarded for the development; or (4) The development is designated for occupancy by the elderly and/ or persons with disabilities (i.e., is not a general occupancy development). (b) Certification procedure. For each development, the PHA shall certify that it has: (1) Reviewed the development's operation as public housing; (2) Considered the implications of converting the public housing to tenantbased assistance; and (3) Concluded that conversion of the development may be: (i) Appropriate because removal of the development would meet the necessary conditions for voluntary conversion described in SEC. 972.224; or (ii) Inappropriate because removal of the development would not meet the necessary conditions for voluntary conversion described SEC. 972.224. (c) Documentation. A PHA must maintain documentation of the reasoning with respect to each required initial assessment. (d) Timing of submission. Consistent with statutory submission requirements, the results of each required initial assessment (consisting of the certification described in paragraph (b) of this section) must be submitted to HUD as part of the next PHA Annual Plan after its completion. Voluntary Conversion Procedure
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Sec. 972.209 Procedure for voluntary conversion of public housing developments to tenant-based assistance.
A PHA that wishes to convert a public housing development to tenantbased assistance must comply with the following process: (a) The PHA must perform a conversion assessment, in accordance with SEC. Sec. 972.218-972.224 and submit it to HUD as part of the next PHA Annual Plan submission. (b) The PHA must prepare a conversion plan, in accordance with SEC. 972.227972.233, and submit it to HUD, as part of its PHA Annual Plan, within one year after submitting the conversion assessment. The PHA may submit the conversion plan in the same Annual Plan as the conversion assessment. {[[Page 567]]} (c) The PHA may proceed to convert the development if HUD approves the conversion plan.
Sec. 972.212 Timing of voluntary conversion.
(a) A PHA may proceed to convert a development covered by a conversion plan only after receiving written approval of the conversion plan from HUD. This approval will be separate from the approval that the PHA receives for its PHA Annual Plan. A PHA may apply for tenant-based assistance in accordance with Section 8 program requirements and will be given priority for receiving tenant-based assistance to replace the public housing units. (b) A PHA may not demolish or dispose of units or property until completion of the required environmental review under part 58 of this title (if a Responsible Entity has assumed environmental responsibility for the project) or part 50 of this title (if HUD is performing the environmental review). Further, HUD will not approve a conversion plan until completion of the required environmental review. However, before completion of the environmental
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development as public housing for the remainder of its useful life. The cost methodology necessary to conduct the cost comparisons for voluntary conversions has not yet been finalized. PHAs may not undertake conversions under this subpart until the effective date of the cost methodology, which will be announced in the Federal Register. Once effective, the cost methodology will be codified as an appendix to this part. (b) Analysis of the market value. (1) A PHA must have an independent appraisal conducted to compare the market value of the development before and after rehabilitation. In both cases, the market value must be based on the use of the development as public housing. (2) In addition, the appraisal must compare: (i) The market value of the development before rehabilitation, based on the use of the development as public housing, with the market value of the development after conversion; with (ii) The market value of the development after rehabilitation, based on the use of the development as public housing, with the market value of the development after conversion. (3) A copy of the appraisal findings and the analysis of market value of the {[[Page 568]]} development in the conversion assessment must be provided in the conversion assessment. (c) Analysis of rental market conditions. (1) A PHA must conduct an analysis of the likely success of using tenant-based assistance for the residents of the public housing development. This analysis must include an assessment of the availability of decent, safe, and sanitary dwelling units rented at or below the applicable Section 8 payment standard established for the jurisdiction or designated part of the FMR area in which the development is located. (2) In conducting this assessment, a PHA must take into account:
review, HUD may approve the targeted units for deprogramming and may authorize the PHA to undertake other activities proposed in the conversion plan that do not require environmental review (such as certain activities related to the relocation of residents), as long as the buildings in question are adequately secured and maintained. (c) For purposes of determining operating subsidy eligibility, the submitted conversion plan will be considered the equivalent of a formal request to remove dwelling units from the PHA's inventory and Annual Contributions Contract (ACC). Units that are vacant or are vacated on or after the written notification date will be treated as approved for deprogramming under SEC. 990.108(b)(1) of this title, and will also be provided the phase down of subsidy pursuant to SEC. 990.114 of this title. (d) HUD may require that funding for the initial year of tenantbased assistance be provided from the public housing Capital Fund, Operating Fund, or both.
Sec. 972.215 Applicability of the Uniform Relocation Act.
To the extent that tenants are displaced as a direct result of the demolition, acquisition, or rehabilitation of federallyassisted property converted under this subpart, the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601) (URA), and the implementing regulations issued by the Department of Transportation at 49 CFR part 24, apply. Conversion Assessments
Sec. 972.218 Conversion assessment components.
The conversion assessment contains five elements, as described below: (a) Cost analysis. A PHA must conduct a cost analysis comparing the cost of providing Section 8 tenant-based assistance with the cost of continuing to operate the
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(i) Its overall use of rental certificates or vouchers under lease and the success rates of using Section 8 tenant-based assistance in the community for the appropriate bedroom sizes, including recent success rates for units renting at or below the established payment standard; and (ii) Any particular characteristics of the specific residents of the public housing which may affect their ability to be housed (such as large household size or the presence of an elderly or disabled family member). (d) Impact analysis. A PHA must describe the likely impact of conversion of the public housing development on the neighborhood in which the public housing is located. This must include: (1) The impact on the availability of affordable housing in the neighborhood; (2) The impact on the concentration of poverty in the neighborhood; and (3) Other substantial impacts on the neighborhood. (e) Conversion implementation. If a PHA intends to convert the development (or a portion of it) to tenant-based assistance, the conversion assessment must include a description of any actions the PHA plans to take in converting the development. This must include a general description of the planned future uses of the development, and the means and timetable for accomplishing such uses.
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assessment, a PHA must ensure that the analysis of rental market conditions is based on the most recently available data, and must include any data that have changed since the initial conversion assessment. A PHA may submit the initial cost analysis and comparison of the market value of the public housing before and after rehabilitation and/or conversion if there is no reason to believe that such information has changed significantly.
Sec. 972.224 Necessary conditions for HUD approval of conversion.
(a) Conditions. In order to convert a public housing development, the PHA must conduct a conversion assessment that demonstrates that the conversion of the development: (1) Will not be more expensive than continuing to operate the development (or portion of it) as public housing; (2) Will principally benefit the residents of the public housing development (or portion thereof) to be converted, the PHA, and the community; and (3) Will not adversely affect the availability of affordable housing in the community. (b) Evidence. (1) Relative expense. The relative expense of continuing operation as public housing or conversion to tenant-based assistance may be demonstrated by the cost analysis and market value analysis. (2) Benefit to residents, PHA, and the community. (i) The benefit to residents, the PHA, and the community may be demonstrated in the rental market analysis, the analysis of the impact on {[[Page 569]]} the neighborhood, the market value analysis, and the proposed future use of the development. In determining whether a conversion will principally benefit residents, the PHA, and the community, HUD will consider whether the conversion will conflict with any litigation settlement agreements, voluntary compliance agreements, or other remedial agreements signed by the PHA with HUD.
Sec. 972.221 Timing of submission of conversion assessments to HUD.
(a) Submission with PHA Plan. A PHA that wishes to convert a public housing development to tenant-based assistance must submit a conversion assessment to HUD with its next PHA Annual Plan. (b) Updated conversion assessment. Where a PHA proposes to convert a development to tenant-based assistance, it must submit an updated conversion assessment if the conversion assessment otherwise would be more than one year older than the conversion plan to be submitted to HUD. To update a conversion
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jurisdiction's Consolidated Plan. This may be the same certification as is required for the PHA Annual Plan that includes the conversion plan, so long as the certification specifically addresses the conversion plan. (c) To satisfy the requirement for significant participation by residents of the development, in addition to the public participation requirements for the PHA Annual Plan, a PHA must: (1) Hold at least one meeting with the residents of the affected sites (including the duly elected Resident Council, if any, that covers the development in question) at which the PHA must: (i) Explain the requirements of section 22 of the United States Housing Act of 1937 and these regulations, especially as they apply to residents of affected developments; and (ii) Provide draft copies of the conversion plan to them. (2) Provide a reasonable comment period for residents; and (3) Summarize the resident comments (as well as the PHA responses to the significant issues raised by the commenters) for HUD, and consider these comments in developing the final conversion plan.
(ii) In making the determination of whether a conversion would principally benefit residents, the PHA, and the community, the PHA must consider such factors as the availability of landlords providing tenantbased assistance, as well as access to schools, jobs, and transportation. (iii) To determine the benefit to residents, the PHA must hold at least one public meeting with residents of the affected site (including the duly elected Resident Council, if any, that covers the development in question). At the meeting, the PHA must: (A) Explain the requirements of section 22 of the United States Housing Act of 1937 and these regulations, especially as they apply to residents of affected developments; (B) Provide draft copies of the conversion assessment to the residents; and (C) Provide the residents with a reasonable period of time to submit comments on the draft conversion assessment. (iv) The conversion assessment submitted to HUD must contain a summary of the resident comments, and the PHA responses to any significant issues raised by the commenters. (3) Impact on affordable housing. The impact on affordable housing may be demonstrated in the rental market analysis and the analysis of the impact of conversion on the neighborhood. Conversion Plans
Sec. 972.230 Conversion plan components.
A conversion plan must: (a) Describe the conversion and future use or disposition of the public housing development. If the future use of the development is demolition or disposition, the PHA is not required to submit a demolition or disposition application, so long as the PHA submits, and HUD approves, a conversion plan that includes a description of the future uses of the development. (b) Include an impact analysis of the conversion on the affected community. This may include the description that is required as part of the conversion assessment. (c) Include a description of how the conversion plan is consistent with the
Sec. 972.227 Public and resident consultation process for developing a conversion plan.
(a) A conversion plan must be developed in consultation with appropriate public officials and with significant participation by residents of the development. (b) The requirement for consultation with public officials may be satisfied by obtaining a certification from the appropriate state or local officials that the conversion plan is consistent with that
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findings of the conversion assessment {[[Page 570]]} undertaken in accordance with SEC. 972.218. (d) Include a summary of the resident comments received when developing the conversion plan, and the PHA responses to the significant issues raised by the commenters (including a description of any actions taken by the PHA as a result of the comments). (e) Confirm that any proceeds received from the conversion are subject to the limitations under section 18(a)(5) of the United States Housing Act of 1937 (42 U.S.C. 1437p(a)(5)) applicable to proceeds resulting from demolition or disposition. (f) Summarize why the conversion assessment for the public housing project supports the three conditions necessary for conversion described in SEC. 972.224. (g) Include a relocation plan that incorporates all of the information identified in paragraphs (g)(1) through (g)(4) of this section. In addition, if the required conversion is subject to the URA, the relocation plan must also contain the information identified in paragraph (g)(5) of this section. The relocation plan must incorporate the following: (1) The number of households to be relocated, by bedroom size, by the number of accessible units. (2) The relocation resources that will be necessary, including a request for any necessary Section 8 funding and a description of actual or potential public or other assisted housing vacancies that can be used as relocation housing and budget for carrying out relocation activities. (3) A schedule for relocation and removal of units from the public housing inventory (including the schedule for providing actual and reasonable relocation expenses, as determined by the PHA, for families displaced by the conversion). (4) Provide for issuance of a written notice to families residing in the development in accordance with the following requirements:
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(i) Timing of notice. If the voluntary conversion is not subject to the URA, the notice shall be provided to families at least 90 days before displacement. If the voluntary conversion is subject to the URA the written notice shall be provided to families no later than the date the conversion plan is submitted to HUD. For purposes of a voluntary conversion subject to the URA, this written notice shall constitute the General Information Notice (GIN) required by the URA. (ii) Contents of notice. The written notice shall include all of the following: (A) The development will no longer be used as public housing and that the family may be displaced as a result of the conversion; (B) The family will be offered comparable housing, which may include tenant-based or project-based assistance, or occupancy in a unit operated or assisted by the PHA (if tenant-based assistance is used, the comparable housing requirement is fulfilled only upon relocation of the family into such housing); (C) Any necessary counseling with respect to the relocation will be provided, including any appropriate mobility counseling (the PHA may finance the mobility counseling using Operating Fund, Capital Fund, or Section 8 administrative fee funding); (D) The family will be relocated to other decent, safe, sanitary, and affordable housing that is, to the maximum extent possible, housing of their choice; (E) If the development is used as housing after conversion, the PHA must ensure that each resident may choose to remain in the housing, using tenant-based assistance towards rent; (F) Where Section 8 voucher assistance is being used for relocation, the family will be provided with the vouchers at least 90 days before displacement; (5) Additional information required for conversions subject to the URA. If the voluntary conversion is subject to the URA, the written notice described in paragraph (g)(4) must also provide that:
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prepare a conversion plan, in accordance with SEC. 972.230, and submit it to HUD, as part of the next PHA Annual Plan within one year after submitting the full conversion assessment, or as a significant amendment to that Annual Plan. The PHA may also submit the conversion plan in the same Annual Plan as the conversion assessment.
(i) The family will not be required to move without at least 90-days advance written notice of the earliest date by which the family may be required to move, and that the family will not be required to move permanently until the family is offered comparable housing as provided in paragraph (g)(4)(ii)(B) of this section; {[[Page 571]]} (ii) Any person who is an alien not lawfully present in the United States is ineligible for relocation payments or assistance under the URA, unless such ineligibility would result in exceptional and extremely unusual hardship to a qualifying spouse, parent, or child, as provided in the URA regulations at 49 CFR 24.208. (iii) The family has a right to appeal the PHA's determination as to the family's application for relocation assistance for which the family may be eligible under this subpart and URA. (iv) Families residing in the development will be provided with the URA Notice of Relocation Eligibility or Notice of Non-displacement (as applicable) as of the date HUD approves the conversion plan (for purposes of this subpart, the date of HUD's approval of the conversion plan shall be the ``date of initiation of negotiations'' as that term is used in URA and the implementing regulations at 49 CFR part 24). (v) Any family that moves into the development after submission of the conversion plan to HUD will also be eligible for relocation assistance, unless the PHA issues a written move-in notice to the family prior to leasing and occupancy of the unit advising the family of the development's possible conversion, the impact of the conversion on the family, and that the family will not be eligible for relocation assistance.
Sec. 972.236 HUD process for approving a conversion plan.
Although a PHA will submit its conversion plan to HUD as part of the PHA Annual Plan, the conversion plan will be treated separately for purposes of HUD approval. A PHA needs a separate written approval from HUD in order to proceed with conversion. HUD anticipates that its review of a conversion plan will ordinarily occur within 90 days following submission of a complete plan by the PHA. A longer process may be required where HUD's initial review of the plan raises questions that require further discussion with the PHA. In any event, HUD will provide all PHAs with a preliminary response within 90 days following submission of a conversion plan. A lack of a HUD response within this time frame will constitute automatic HUD approval of the conversion plan.
Sec. 972.239 HUD actions with respect to a conversion plan.
(a) When a PHA submits a conversion plan to HUD, HUD will review it to determine whether: (1) The conversion plan is complete and includes all of the information required under SEC. 972.230; and (2) The conversion plan is consistent with the conversion assessment the PHA submitted. (b) HUD will disapprove a conversion plan only if HUD determines that: (1) The conversion plan is plainly inconsistent with the conversion assessment; (2) There is reliable information and data available to the Secretary that contradicts the conversion assessment; or
Sec. 972.233 Timing of submission of conversion plans to HUD.
A PHA that wishes to convert a public housing project to tenantbased assistance must submit a conversion plan to HUD. A PHA must
Vol. 4A: PHA Modernization, Development, Maintenance & Relocation 49 CFR 24 Uniform Relocation Assistance
(3) The conversion plan is incomplete or otherwise fails to meet the requirements under SEC. 972.230.
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49 CFR 24 Uniform Relocation Assistance
[Code of Federal Regulations] [Title 49, Volume 1] [Revised as of October 1, 2003] From the U.S. Government Printing Office via GPO Access [Page 199-238] TITLE 49--TRANSPORTATION Subtitle A--Office of the Secretary of Transportation PART 24_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS Subpart A_General 24.1 Purpose. 24.2 Definitions. 24.3 No duplication of payments. 24.4 Assurances, monitoring and corrective action. 24.5 Manner of notices. 24.6 Administration of jointly-funded projects. 24.7 Federal agency waiver of regulations. 24.8 Compliance with other laws and regulations. 24.9 Recordkeeping and reports. 24.10 Appeals. Subpart B_Real Property Acquisition 24.101 Applicability of acquisition requirements. 24.102 Basic acquisition policies. 24.103 Criteria for appraisals. 24.104 Review of appraisals. 24.105 Acquisition of tenant-owned improvements. 24.106 Expenses incidental to transfer of title to the Agency. 24.107 Certain litigation expenses. 24.108 Donations. Subpart C_General Relocation Requirements 24.201 Purpose.
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24.504 Replacement housing payment for 90-day mobile home occupants. 24.505 Additional rules governing relocation payments to mobile home occupants. Subpart G_Certification 24.601 Purpose. 24.602 Certification application. 24.603 Monitoring and corrective action. Appendix A to Part 24--Additional Information Appendix B to Part 24--Statistical Report Form Authority: 42 U.S.C. 4601 et seq.; 49 CFR 1.48(cc). Source: 54 FR 8928, Mar. 2, 1989, unless otherwise noted.
24.202 Applicability. 24.203 Relocation notices. 24.204 Availability of comparable replacement dwelling before displacement. 24.205 Relocation planning, advisory services, and coordination. 24.206 Eviction for cause. 24.207 General requirements--claims for relocation payments. 24.208 Aliens not lawfully present in the United States. 24.209 Relocation payments not considered as income. {[[Page 200]]} Subpart D_Payments for Moving and Related Expenses 24.301 Payment for actual reasonable moving and related expenses-residential moves. 24.302 Fixed payment for moving expenses--residential moves. 24.303 Payment for actual reasonable moving and related expenses-nonresidential moves. 24.304 Reestablishment expenses-nonresidential moves. 24.305 Ineligible moving and related expenses. 24.306 Fixed payment for moving expenses--nonresidentia1 moves. 24.307 Discretionary utility relocation payments. Subpart E_Replacement Housing Payments 24.401 Replacement housing payment for 180-day homeowner-occupants. 24.402 Replacement housing payment for 90-day occupants. 24.403 Additional rules governing replacement housing payments. 24.404 Replacement housing of last resort. Subpart F_Mobile Homes 24.501 Applicability. 24.502 Moving and related expenses-mobile homes. 24.503 Replacement housing payment for 180-day mobile homeowneroccupants.
Subpart A_General
Sec. 24.1 Purpose.
The purpose of this part is to promulgate rules to implement the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. 4601 et seq.), in accordance with the following objectives: (a) To ensure that owners of real property to be acquired for Federal and federally-assisted projects are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and relieve congestion in the courts, and to promote public confidence in Federal and federallyassisted land acquisition programs; (b) To ensure that persons displaced as a direct result of Federal or federallyassisted projects are treated fairly, consistently, and equitably so that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole; and (c) To ensure that Agencies implement these regulations in a manner that is efficient and cost effective.
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[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989]
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Sec. 24.2 Definitions.
Agency. The term Agency means the Federal agency, State, State agency, or person that acquires real property or displaces a person. (1) Acquiring agency. The term acquiring agency means a State agency, as defined in paragraph (a)(4) of this section, which has the authority to acquire property by eminent domain under State law, and a State agency or person which does not have such authority. Any Agency or person solely acquiring property pursuant to the provisions of SEC. 24.101(a) (1), (2), (3), or (4) need not provide the assurances required by SEC. 24.4(a)(1) or (2). (2) Displacing agency. The term displacing agency means any Federal agency carrying out a program or project, and any State, State agency, or person carrying out a program or project with Federal financial assistance, which causes a person to be a displaced person. (3) Federal agency. The term Federal agency means any department, Agency, or instrumentality in the executive branch of the Government, any wholly owned Government corporation, the Architect of the Capitol, the Federal Reserve Banks and branches thereof, and any person who has the authority {[[Page 201]]} to acquire property by eminent domain under Federal law. (4) State agency. The term State agency means any department, Agency or instrumentality of a State or of a political subdivision of a State, any department, Agency, or instrumentality of two or more States or of two or more political subdivisions of a State or States, and any person who has the authority to acquire property by eminent domain under State law. Alien not lawfully present in the United States. The phrase ``alien not lawfully present in the United States'' means an alien who is not ``lawfully present'' in the United
States as defined in 8 CFR 103.12 and includes: (1) An alien present in the United States who has not been admitted or paroled into the United States pursuant to the Immigration and Nationality Act and whose stay in the United States has not been authorized by the United States Attorney General, and (2) An alien who is present in the United States after the expiration of the period of stay authorized by the United States Attorney General or who otherwise violates the terms and conditions of admission, parole or authorization to stay in the United States. Appraisal. The term appraisal means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information. Business. The term