II

106TH CONGRESS

1ST SESSION S. 400

To provide technical corrections to the Native American Housing Assistance

and Self-Determination Act of 1996, to improve the delivery of housing

assistance to Indian tribes in a manner that recognizes the right of

tribal self-governance, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 10, 1999

Mr. CAMPBELL (for himself and Mr. INOUYE) introduced the following bill;

which was read twice and referred to the Committee on Indian Affairs

A BILL

To provide technical corrections to the Native American

Housing Assistance and Self-Determination Act of 1996,

to improve the delivery of housing assistance to Indian

tribes in a manner that recognizes the right of tribal

self-governance, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Native American Housing Assistance and Self-Deter6 mination Act Amendments of 1999’’.
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1 (b) TABLE OF CONTENTS.—The table of contents for

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Restriction on waiver authority.

Sec. 3. Organizational capacity; assistance to families that are not low-income.

Sec. 4. Elimination of waiver authority for small tribes.

Sec. 5. Expanded authority to review Indian housing plans.

Sec. 6. Oversight.

Sec. 7. Allocation formula.

Sec. 8. Hearing requirement.

Sec. 9. Performance agreement time limit.

Sec. 10. Block grants and guarantees not Federal subsidies for low-income

housing credit.

Sec. 11. Technical and conforming amendments.

3 SEC 2. RESTRICTION ON WAIVER AUTHORITY.

4 Section 101(b)(2) of the Native American Housing

5 Assistance and Self-Determination Act of 1996 (25 U.S.C.

6 4111(b)(2)) is amended by striking ‘‘if the Secretary’’ and

7 all that follows before the period at the end and inserting

8 the following: ‘‘for a period of not more than 90 days, if

9 the Secretary determines that an Indian tribe has not

10 complied with, or is unable to comply with, those require11 ments due to extreme circumstances beyond the control

12 of the Indian tribe’’.

13 SEC. 3. ORGANIZATIONAL CAPACITY; ASSISTANCE TO FAMI14 LIES THAT ARE NOT LOW-INCOME.

15 (a) ORGANIZATIONAL CAPACITY.—Section 102(c)(4)

16 of the Native American Housing Assistance and Self-De17 termination Act (25 U.S.C. 4112(c)(4)) is amended—

18 (1) by redesignating subparagraphs (A) through

19 (K) as subparagraphs (B) through (L), respectively;

20 and
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1 (2) by inserting before subparagraph (B), as re2 designated by paragraph (1) of this subsection, the

3 following:

4 ‘‘(A) a description of the entity that is respon5 sible for carrying out the activities under the plan,

6 including a description of—

7 ‘‘(i) the relevant personnel of the entity;

8 and

9 ‘‘(ii) the organizational capacity of the en10 tity, including—

11 ‘‘(I) the management structure of the

12 entity; and

13 ‘‘(II) the financial control mechanisms

14 of the entity;’’.

15 (b) ASSISTANCE TO FAMILIES THAT ARE NOT LOW16 INCOME.—Section 102(c) of the Native American Housing

17 Assistance and Self-Determination Act of 1996 (25 U.S.C.

18 4112) is amended by adding at the end the following:

19 ‘‘(6) CERTAIN FAMILIES.—With respect to as20 sistance provided by a recipient to Indian families

21 that are not low-income families under section

22 201(b)(2), evidence that there is a need for housing

23 for each such family during that period that cannot

24 reasonably be met without such assistance.’’.
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1 SEC. 4. ELIMINATION OF WAIVER AUTHORITY FOR SMALL

2 TRIBES.

3 Section 102 of the Native American Housing Assist4 ance and Self-Determination Act of 1996 (25 U.S.C.

5 4112) is amended—

6 (1) by striking subsection (f); and

7 (2) by redesignating subsection (g) as sub8 section (f).

9 SEC. 5. EXPANDED AUTHORITY TO REVIEW INDIAN HOUS10 ING PLANS.

11 Section 103(a)(1) of the Native American Housing

12 Assistance and Self-Determination Act of 1996 (25 U.S.C.

13 4113(a)(1)) is amended—

14 (1) in the first sentence, by striking ‘‘limited’’;

15 and

16 (2) by striking the second sentence.

17 SEC. 6. OVERSIGHT.

18 (a) REPAYMENT.—Section 209 of the Native Amer19 ican Housing Assistance and Self-Determination Act of

20 1996 (25 U.S.C. 4139) is amended to read as follows:

21 ‘‘SEC. 209. NONCOMPLIANCE WITH AFFORDABLE HOUSING

22 REQUIREMENT.

23 ‘‘If a recipient uses grant amounts to provide afford24 able housing under this title, and at any time during the

25 useful life of the housing the recipient does not comply

26 with the requirement under section 205(a)(2), the Sec-
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1 retary shall take appropriate action under section

2 401(a).’’.

3 (b) AUDITS AND REVIEWS.—Section 405 of the Na4 tive American Housing Assistance and Self-Determination

5 Act of 1996 (25 U.S.C. 1465) is amended to read as fol6 lows:

7 ‘‘SEC. 405. REVIEW AND AUDIT BY SECRETARY.

8 ‘‘(a) REQUIREMENTS UNDER CHAPTER 75 OF TITLE

9 31, UNITED STATES CODE.—

10 ‘‘(1) IN GENERAL.—An entity designated by an

11 Indian tribe as a housing entity shall be treated, for

12 purposes of chapter 75 of title 31, United States

13 Code, as a non-Federal entity that is subject to the

14 audit requirements that apply to non-Federal enti15 ties under that chapter.

16 ‘‘(2) PAYMENT OF COSTS.—

17 ‘‘(A) IN GENERAL.—The Secretary may

18 arrange for, and pay the cost of, any audit re19 quired under paragraph (1).

20 ‘‘(B) WITHHOLDING OF AMOUNTS.—If the

21 Secretary pays for the cost of an audit under

22 subparagraph (A), the Secretary may withhold,

23 from the assistance otherwise payable under

24 this Act, an amount sufficient to pay for the

25 reasonable costs of conducting an audit that
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1 meets the applicable requirements of chapter 75

2 of title 31, United States Code, including, if ap3 propriate, the reasonable costs of accounting

4 services necessary to ensure that the books and

5 records of the entity referred to in paragraph

6 (1) are in such condition as is necessary to

7 carry out the audit.

8 ‘‘(b) ADDITIONAL REVIEWS AND AUDITS.—

9 ‘‘(1) IN GENERAL.—In addition to any audit

10 under subsection (a)(1), to the extent the Secretary

11 determines such action to be appropriate, the Sec12 retary may conduct an audit of a recipient in order

13 to—

14 ‘‘(A) determine whether the recipient—

15 ‘‘(i) has carried out—

16 ‘‘(I) eligible activities in a timely

17 manner; and

18 ‘‘(II) eligible activities and cer19 tification in accordance with this Act

20 and other applicable law;

21 ‘‘(ii) has a continuing capacity to

22 carry out eligible activities in a timely

23 manner; and

24 ‘‘(iii) is in compliance with the Indian

25 housing plan of the recipient; and
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1 ‘‘(B) verify the accuracy of information

2 contained in any performance report submitted

3 by the recipient under section 404.

4 ‘‘(2) ONSITE VISITS.—To the extent prac5 ticable, the reviews and audits conducted under this

6 subsection shall include onsite visits by the appro7 priate official of the Department of Housing and

8 Human Development.

9 ‘‘(c) REVIEW OF REPORTS.—

10 ‘‘(1) IN GENERAL.—The Secretary shall provide

11 each recipient that is the subject of a report made

12 by the Secretary under this section notice that the

13 recipient may review and comment on the report

14 during a period of not less than 30 days after the

15 date on which notice is issued under this paragraph.

16 ‘‘(2) PUBLIC AVAILABILITY.—After taking into

17 consideration any comments of the recipient under

18 paragraph (1), the Secretary—

19 ‘‘(A) may revise the report; and

20 ‘‘(B) not later than 30 days after the date

21 on which those comments are received, shall

22 make the comments and the report (with any

23 revisions made under subparagraph (A)) readily

24 available to the public.
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1 ‘‘(d) EFFECT OF REVIEWS.—Subject to section

2 401(a), after reviewing the reports and audits relating to

3 a recipient that are submitted to the Secretary under this

4 section, the Secretary may adjust the amount of a grant

5 made to a recipient under this Act in accordance with the

6 findings of the Secretary with respect to those reports and

7 audits.’’.

8 SEC. 7. ALLOCATION FORMULA.

9 Section 302(d)(1) of the Native American Housing

10 Assistance and Self-Determination Act of 1996 (25 U.S.C.

11 4152(d)(1)) is amended—

12 (1) by striking ‘‘The formula,’’ and inserting

13 the following:

14 ‘‘(A) IN GENERAL.—Except with respect to

15 an Indian tribe described in subparagraph (B),

16 the formula’’; and

17 (2) by adding at the end the following:

18 ‘‘(B) CERTAIN INDIAN TRIBES.—With re19 spect to fiscal year 2000 and each fiscal year

20 thereafter, with respect to any Indian tribe hav21 ing an Indian housing authority that owns or

22 operates fewer than 250 public housing units,

23 the formula under subparagraph (A) shall pro24 vide that the amount provided for a fiscal year

25 in which the total amount made available for
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1 assistance under this Act is equal to or greater

2 than the amount made available for fiscal year

3 1996 for assistance for the operation and mod4 ernization of the public housing referred to in

5 subparagraph (A), the amount provided to that

6 Indian tribe as modernization assistance shall

7 be equal to the average annual amount of funds

8 provided to the Indian tribe (other than funds

9 provided as emergency assistance) under the as10 sistance program under section 14 of the

11 United States Housing Act of 1937 (42 U.S.C.

12 1437l) for the period beginning with fiscal year

13 1992 and ending with fiscal year 1997.’’.

14 SEC. 8. HEARING REQUIREMENT.

15 Section 401(a) of the Native American Housing As16 sistance and Self-Determination Act of 1996 (25 U.S.C.

17 4161(a)) is amended—

18 (1) by redesignating paragraphs (1) through

19 (4) as subparagraphs (A) through (D), respectively,

20 and indenting each such subparagraph 2 ems to the

21 right;

22 (2) by striking ‘‘Except as provided’’ and in23 serting the following:

24 ‘‘(1) IN GENERAL.—Except as provided’’;
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1 (3) by striking ‘‘If the Secretary takes an ac2 tion under paragraph (1), (2), or (3)’’ and inserting

3 the following:

4 ‘‘(2) CONTINUANCE OF ACTIONS.—If the Sec5 retary takes an action under subparagraph (A), (B),

6 or (C) of paragraph (1)’’; and

7 (4) by adding at the end the following:

8 ‘‘(3) EXCEPTION FOR CERTAIN ACTIONS.—

9 ‘‘(A) IN GENERAL.—Notwithstanding any

10 other provision of this subsection, if the Sec11 retary makes a determination that the failure of

12 a recipient of assistance under this Act to com13 ply substantially with any material provision (as

14 that term is defined by the Secretary) of this

15 Act is resulting, and would continue to result,

16 in a continuing expenditure of Federal funds in

17 a manner that is not authorized by law, the

18 Secretary may take an action described in para19 graph (1)(C) before conducting a hearing.

20 ‘‘(B) PROCEDURAL REQUIREMENT.—If the

21 Secretary takes an action described in subpara22 graph (A), the Secretary shall—

23 ‘‘(i) provide notice to the recipient at

24 the time that the Secretary takes that ac25 tion; and
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1 ‘‘(ii) conduct a hearing not later than

2 60 days after the date on which the Sec3 retary provides notice under clause (i).

4 ‘‘(C) DETERMINATION.—Upon completion

5 of a hearing under this paragraph, the Sec6 retary shall make a determination regarding

7 whether to continue taking the action that is

8 the subject of the hearing, or take another ac9 tion under this subsection.’’.

10 SEC. 9. PERFORMANCE AGREEMENT TIME LIMIT.

11 Section 401(b) of the Native American Housing As12 sistance and Self-Determination Act of 1996 (25 U.S.C.

13 4161(b)) is amended—

14 (1) by striking ‘‘If the Secretary’’ and inserting

15 the following:

16 ‘‘(1) IN GENERAL.—If the Secretary’’;

17 (2) by striking ‘‘(1) is not’’ and inserting the

18 following:

19 ‘‘(A) is not’’;

20 (3) by striking ‘‘(2) is a result’’ and inserting

21 the following:

22 ‘‘(B) is a result:

23 (4) in the flush material following paragraph

24 (1)(B), as redesignated by paragraph (3) of this

25 section—
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1 (A) by adjusting the margin 2 ems to the

2 right; and

3 (B) by inserting before the period at the

4 end the following: ‘‘, if the recipient enters into

5 a performance agreement with the Secretary

6 that specifies the compliance objectives that the

7 recipient will be required to achieve by the ter8 mination date of the performance agreement’’;

9 and

10 (5) by adding at the end the following:

11 ‘‘(2) PERFORMANCE AGREEMENT.—The period

12 of a performance agreement described in paragraph

13 (1) shall be for 1 year.

14 ‘‘(3) REVIEW.—Upon the termination of a per15 formance agreement entered into under paragraph

16 (1), the Secretary shall review the performance of

17 the recipient that is a party to the agreement.

18 ‘‘(4) EFFECT OF REVIEW.—If, on the basis of

19 a review under paragraph (3), the Secretary deter20 mines that the recipient—

21 ‘‘(A) has made a good faith effort to meet

22 the compliance objectives specified in the agree23 ment, the Secretary may enter into an addi24 tional performance agreement for the period

25 specified in paragraph (2); and
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1 ‘‘(B) has failed to make a good faith effort

2 to meet applicable compliance objectives, the

3 Secretary shall determine the recipient to have

4 failed to comply substantially with this Act, and

5 the recipient shall be subject to an action under

6 subsection (a).’’.

7 SEC. 10. BLOCK GRANTS AND GUARANTEES NOT FEDERAL

8 SUBSIDIES FOR LOW-INCOME HOUSING

9 CREDIT.

10 (a) IN GENERAL.—Subparagraph (E) of section

11 42(i)(2) of the Internal Revenue Code of 1986 (relating

12 to determination of whether building is federally sub13 sidized) is amended to read as follows:

14 ‘‘(E) BUILDINGS RECEIVING HOME ASSIST15 ANCE OR NATIVE AMERICAN HOUSING ASSIST16 ANCE.—

17 ‘‘(i) IN GENERAL.—

18 ‘‘(I) INAPPLICABILITY.—Assist19 ance provided under the HOME In20 vestment Partnerships Act or the Na21 tive American Housing Assistance and

22 Self-Determination Act of 1996 as in

23 effect on the day before the date of

24 enactment of the Native American

25 Housing Assistance and Self-Deter-
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1 mination Act Amendments of 1997

2 with respect to any building shall not

3 be taken into account under subpara4 graph (D) if 40 percent or more of

5 the residential units in the building

6 are occupied by individuals whose in7 come is 50 percent or less of the area

8 median gross income.

9 ‘‘(II) APPLICABILITY OF OTHER

10 LAW.—Subsection (d)(5)(C) does not

11 apply to any building to which sub12 clause (I) applies.

13 ‘‘(ii) SPECIAL RULE FOR CERTAIN

14 HIGH-COST HOUSING AREAS.—In the case

15 of a building located in a city described in

16 section 142(d)(6), clause (i) shall be ap17 plied by substituting ‘25 percent’ for ‘40

18 percent’.’’.

19 (b) APPLICABILITY.—The amendment made by this

20 section shall apply to determinations made under section

21 42(i)(2) of the Internal Revenue Code after the date of

22 enactment of this Act.

23 SEC. 11. TECHNICAL AND CONFORMING AMENDMENTS.

24 (a) TABLE OF CONTENTS.—Section 1(b) of the Na25 tive American Housing Assistance and Self-Determination
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1 Act of 1996 (25 U.S.C. 4101 note) is amended in the table

2 of contents—

3 (1) by striking the item relating to section 206;

4 and

5 (2) by striking the item relating to section 209

6 and inserting the following:

‘‘209. Noncompliance with affordable housing requirement.’’.

7 (b) AUTHORIZATION OF APPROPRIATIONS.—Section

8 108 of the Native American Housing Assistance and Self9 Determination Act of 1996 (25 U.S.C. 4117) is amended

10 to read as follows:

11 ‘‘SEC. 108. AUTHORIZATION OF APPROPRIATIONS.

12 ‘‘There are authorized to be appropriated for each of

13 fiscal years 2000 through 2003—

14 ‘‘(1) to provide assistance under this title for

15 emergencies and disasters, as determined by the

16 Secretary, $10,000,000; and

17 ‘‘(2) such sums as may be necessary to other18 wise provide grants under this title.’’.

19 (c) CERTIFICATION OF COMPLIANCE WITH SUBSIDY

20 LAYERING REQUIREMENTS.—Section 206 of the Native

21 American Housing Assistance and Self-Determination Act

22 of 1996 (25 U.S.C. 4136) is repealed.

23 (d) TERMINATIONS.—Section 502(a) of the Native

24 American Housing Assistance and Self-Determination Act

25 of 1996 (25 U.S.C. 4181(a)) is amended by adding at the
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1 end the following: ‘‘Any housing that is the subject of a

2 contract for tenant-based assistance between the Secretary

3 and an Indian housing authority that is terminated under

4 this section shall, for the following fiscal year and each

5 fiscal year thereafter be considered to be a dwelling unit

6 under section 302(b)(1).’’.

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