U.S. Department of Housing and Urban
Development![](media/image1.png){width="1.0333333333333334in"
height="0.9993055555555556in"}

Office of Public and Indian Housing

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| Special Attention of:             | **NOTICE PIH 2003-3 (TDHEs)**     |
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| Administrators, Offices of Native | Issued: January 30, 2003          |
| American Programs; Tribal         |                                   |
| Government Leaders; Tribally      | Expires: Indefinite               |
| Designated Housing Entities       |                                   |
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|                                   | Cross References: 24 CFR Part     |
|                                   | 1000                              |
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**Subject:** Implementation of Statutory Change to the Native American
Housing

> Assistance and Self-Determination Act of 1996 (NAHASDA) related to
> Labor
>
> Standards

**Summary:** In calendar year 2000, three laws were enacted which
amended NAHASDA: the Fiscal Year (FY) 2001 HUD Appropriations Act,
Public Law 106-377, approved October 27, 2000; the *Omnibus Indian
Advancement Act*, Public Law 106-568, Title X -- Native American
Homeownership approved December 27, 2000; and the *American
Homeownership and Economic Opportunity Act of 2000*, Public Law 106-569,
Title V -- Native American Homeownership approved December 27, 2000.
With minor exception, the two laws approved on December 27, 2000 contain
identical provisions. However, because the two laws enacted on December
27, 2000, cannot both amend NAHASDA, HUD considers the first -- the
*Omnibus Indian Advancement Act*, Public Law 106-568 -- to contain the
operative amendments.

**Consultation with Tribal Governments:** In accordance with Executive
Order 13175, *Consultation and Coordination with Indian Tribal
Governments*, and the Department's *Tribal Government-to-Government
Consultation Policy* (published in the Federal Register on September 28,
2001), the Department provided tribal leaders with an outline of all the
statutory amendments and HUD's proposed method for implementing the
amendments. Approximately 800 copies of the proposed language were
mailed to Indian tribal governments and tribally designated housing
entities (TDHE) to solicit feedback in accordance with the Department's
*Tribal Government-to-Government Consultation Policy*. February 11, 2002
was established as the date for receipt of feedback. Written and
electronic feedback was provided by one tribal government, six TDHEs,
one attorney on behalf of six TDHEs, and two housing associations.

Based on the tribal comments received regarding the Labor Standards
provision, the Department has reconsidered our position on this
amendment. The Department is now taking the position that implementation
of the amendment to sec. 104(b) related to tribally enacted prevailing
wage laws and regulations does not require issuance of HUD implementing
regulations. This Notice is to acknowledge that from enactment of the
Omnibus Indian Advancement Act, Davis-Bacon and/or HUD-determined
prevailing wage rates under sec. 104(b)(1) do not apply to contracts and
agreements that are covered by tribal laws and regulations described in
sec. 104(b)(3). A conforming rule will be published in the future.

**NAHASDA Amendment**: The following discusses the implementation of the
statutory amendment related to Labor Relations:

Sec. 1003(j) of P.L. 106-568 amended sec. 104(b) of NAHASDA related to
Labor Standards. Sec. 104(b)(1) was amended to change the Davis Bacon
reference from "Davis Bacon Act (40 U.S.C. 276a-276a-5)" to the "Act of
March 3, 1931 (commonly known as the Davis-Bacon Act; chapter 411; 46
Stat. 1494; 40 U.S.C. 276a et seq.)". A new paragraph was added to the
end of sec.104(b) and reads as follows:

> "(3) APPLICATION OF TRIBAL LAWS- Paragraph (1) shall not apply to any
> contract or agreement for assistance, sale, or lease pursuant to this
> Act, if such contract or agreement is otherwise covered by one or more
> laws or regulations adopted by an Indian tribe that requires the
> payment of not less than prevailing wages, as determined by the Indian
> tribe."

This Notice acknowledges that the above provision is in effect. A
conforming rule will be published in the future. The Department will
also publish Program Guidance to provide tribes and TDHEs with
additional information on this issue.

> \_\_\_\_\_\_\_\_\_\_/s\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Michael
> Liu, Assistant Secretary

Office of Public and Indian Housing