[Federal Register Volume 87, Number 3 (Wednesday, January 5, 2022)]
[Notices]
[Pages 473-476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28565]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[FR-6301-N-02]


Regulatory and Administrative Requirement Flexibilities Available 
to Native American Programs During CY 2022 and CY 2023 to Tribal 
Grantees To Assist With Recovery and Relief Efforts on Behalf of 
Families Affected by Presidentially Declared Disasters

AGENCY: Office of Assistant Secretary for Public and Indian Housing, 
U.S. Department of Housing and Urban Development (HUD).

ACTION: Notice.

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SUMMARY: This notification advises the public of waivers and 
flexibilities from HUD requirements for its Indian Housing Block Grant 
(IHBG), Indian Community Development Block Grant (ICDBG), and Native 
Hawaiian Housing Block Grant (NHHBG) grantees located in areas that are 
covered by Presidentially Declared Disasters (PDDs). A PDD is a major 
disaster or emergency declared under the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act that activates an array of federal 
programs to assist in the

[[Page 474]]

response and recovery efforts. When they occur, disasters and their 
aftermath impose significant barriers and challenges for housing 
programs to overcome or operate. To provide relief during such 
challenging times for its IHBG, ICDBG, and NHHBG grantees, HUD is 
publishing this standing Notice of regulatory and administrative 
requirement flexibilities to assist affected grantees. Instructions are 
provided below on how to apply for flexibilities. A grantee may request 
a waiver or flexibility of a HUD requirement not listed in this 
standing Notice and receive an expedited review of the request if the 
grantee demonstrates that the waiver or flexibility is needed to assist 
its disaster relief and recovery efforts. Please note that the waivers 
and flexibilities in this Notice do not apply to the various COVID-
relief related programs administered by the Office of Native American 
Programs (IHBG-CARES, IHBG-ARP, ICDBG-CARES, ICDBG-ARP, and NHHBG-ARP) 
because HUD has issued separate waivers and alternative requirements 
that apply to those programs, as further outlined in the Implementation 
and Waiver Notices governing those programs.

DATES: This document announces the waivers and flexibilities set out in 
this document as of January 1, 2022.

FOR FURTHER INFORMATION CONTACT: Hilary Atkin, Office of Native 
American Programs, Office of Public and Indian Housing, Department of 
Housing and Urban Development, 451 Seventh Street SW, Room 4108, 
Washington, DC 20410-5000, or email <a href="/cdn-cgi/l/email-protection#0f4766636e7d76214c214e7b6466614f677a6b21686079"><span class="__cf_email__" data-cfemail="3078595c5142491e731e71445b595e705845541e575f46">[email protected]</span></a>. Persons 
with hearing or speech impairments may access this number via TTY by 
calling the Federal Relay Service at 800-877-8339 (this is a toll-free 
number).

I. Flexibilities That Are Available to PDD Tribes, Tribally Designated 
Housing Entities, and the Department of Hawaiian Homelands During CY 
2022 and CY 2023

    The following is a list of HUD requirement waivers and 
flexibilities available for IHBG, ICDBG, and NHHBG grantees located 
within PDD areas. Grantees may use any of the waivers and flexibilities 
below to assist their communities in addressing challenges and issues 
that result from a disaster covered by a PDD.

A. 24 CFR Part 1000 (IHBG)

1. Total Development Costs (24 CFR 1000.156, 1000.158, 1000.160, and 
1000.162)
    The IHBG regulations at 24 CFR part 1000 require that affordable 
housing under the Native American Housing Assistance and Self-
Determination Act of 1996 (NAHASDA) be of moderate design with a size 
and with amenities consistent with unassisted housing offered for sale 
in the Indian tribe's general geographic area to buyers who are at or 
below the area median income (AMI). To achieve this requirement the 
recipient must either: Adopt written standards for its affordable 
housing programs that reflect the requirement specified, or use total 
development cost (TDC) limits published periodically by HUD that 
establish the maximum amount of funds (from all sources) that the 
recipient may use to develop or acquire/rehabilitate affordable 
housing. The limits provided by the TDC may not, without prior HUD 
approval, exceed by more than 10 percent the TDC maximum cost for the 
project. Non-dwelling structures used to support an affordable housing 
activity must be of a design, size and with features or amenities that 
are reasonable and necessary to accomplish the purpose intended by the 
structures.
    Disasters may result in disruptions to supply chains, lead to labor 
and contractor shortages, and result in overall increases in 
construction costs. Given this possibility of increased costs of 
resources and the urgency to rehabilitate homes following a disaster, 
HUD is waiving the TDC regulatory requirements in 24 CFR 1000.156, 
1000.158, 1000.160, and 1000.162 relating to limitations on cost or 
design standards and TDC with respect to dwelling and non-dwelling 
units developed, acquired, or assisted with IHBG funding. Under this 
waiver, an IHBG recipient may exceed the current TDC maximum by 20 
percent without HUD review or approval (other than notification by the 
grantee pursuant to the procedures outlined in Section II of this 
Notice). The recipient, however, must maintain documentation that 
indicates the dwelling units and non-dwelling structures developed, 
acquired, or assisted with this funding will, after the PDD, be for 
IHBG eligible families and the design, size, and amenities are moderate 
and comparable to housing in the area. The TDC limits can be exceeded 
by more than 20 percent if the recipient receives written approval from 
HUD Headquarters. This waiver applies to both single-family and multi-
family housing, as well as non-dwelling structures.
2. Income Verification (24 CFR 1000.128)
    24 CFR 1000.128 requires IHBG recipients to verify that a family is 
income eligible. Families are required to provide documentation to 
verify this determination, and a recipient is required to maintain that 
documentation. Families may be required by the IHBG recipient to 
periodically verify income after initial occupancy, and the recipient 
is required to maintain documentation.
    As families may be displaced during a disaster and may not have 
access to their income documentation, HUD is waiving section 1000.128, 
and allowing the following:
    (a) IHBG recipients may deviate from their current written 
admissions and occupancy policies, and may allow less frequent income 
recertifications; and
    (b) IHBG recipients may carry out intake and other tasks necessary 
to verify income through alternative means if the IHBG recipient 
chooses to do so, including allowing income self-certification over the 
phone (with a written record by the IHBG recipient's staff), or through 
an email with a self-certification form signed by a family.
3. Assistance to Middle-Income Families Impacted by a Disaster (24 CFR 
1000.104, 1000.106, 1000.108, and 1000.110)
    Generally, Section 201 of NAHASDA and the IHBG regulations at 24 
CFR 1000.104, 1000.106, 1000.108, and 1000.110 require that IHBG 
recipients limit assistance to low-income Native American families, 
with some exceptions for non-low-income families at 80-100 percent AMI, 
families over 100 percent of AMI, and essential families under section 
201(b)(3) of NAHASDA. Section 201(b)(2) and 24 CFR 1000.110 provide 
that an IHBG recipient may aid a non-low-income family upon a 
documented determination by the recipient that there is a need for 
housing for such family that cannot reasonably be met without such 
assistance. 24 CFR 1000.110(c) provides that a recipient may use up to 
10 percent of the amount planned for the tribal program year for 
families whose income falls within 80 to 100 percent of AMI without HUD 
approval. HUD approval is required if a recipient plans to use more 
than 10 percent of the amount planned for the tribal program year for 
such assistance or to provide housing for families with income over 100 
percent of AMI. Finally, 24 CFR 1000.110(d) provides that non-low-

[[Page 475]]

income families cannot receive the same benefits provided low-income 
Indian families. The amount of rental assistance, homeownership 
assistance, and other assistance that non-low-income families may 
receive will be determined in accordance with the formula provided in 
that regulation.
    Disasters may devastate and displace Native American families in a 
community of all incomes, make housing uninhabitable, damage community 
infrastructure, and result in a loss of life and property. IHBG 
recipients may find it in the public interest to aid non-low-income 
families that are displaced due to a disaster, including by using IHBG 
funds to provide such assistance as temporary rental assistance to 
otherwise ineligible families in IHBG-assisted housing owned or 
operated by the recipient, housing such families in hotels/motels, and 
similar facilities, providing such families with necessary relocation 
assistance, and more. To help alleviate the impact of disasters on 
Tribal communities, HUD is waiving 24 CFR 1000.104, 1000.106, 1000.108, 
and 1000.110 to the extent necessary to allow for the following 
flexibilities:
    (a) IHBG recipients in PDDs may exceed the 10 percent cap on 
serving Native American families whose income falls within 80 to 100 
percent of AMI without HUD approval, provided the recipient decides 
that the families are impacted by the disaster and that there is a need 
for housing for such family that cannot reasonably be met without such 
assistance.
    (b) IHBG recipients in PDDs may provide IHBG assistance to middle-
income Native American families whose income is at or below 120 percent 
of AMI without HUD approval, provided the recipient decides that the 
families are impacted by the disaster and that there is a need for 
housing for such family that cannot reasonably be met without such 
assistance.
    In all cases, assistance to these non-low-income families must 
still comply with limits on assistance specified in 24 CFR 1000.110(d). 
Additionally, all assistance must be temporary in nature. For instance, 
such families may receive temporary rental assistance that is time-
limited pursuant to the recipient's policies but may not receive 
permanent tenant-based rental assistance with no specified end date. 
IHBG recipients must ensure that IHBG assistance provided does not 
result in a duplication of benefits. For example, IHBG recipients 
should not pay for costs that are already covered by private insurance 
or other Federal, State, or Tribal funds or programs. Finally, when 
providing this assistance, IHBG recipients must also maintain records 
documenting that all these criteria were met at the time that such 
assistance was provided.

B. 24 CFR Part 1003 (ICDBG)

1. Purchasing Equipment (24 CFR 1003.207(b)(1)(i))
    The purchase of equipment with ICDBG funds is generally ineligible 
under 24 CFR 1003.207(b)(1)(i), with some exceptions. Given the 
immediate need for certain equipment to carry out ICDBG eligible 
activities related to disaster recovery, such as construction 
equipment, necessary for clearance, construction, rehabilitation, and 
other recovery efforts in the aftermath of a disaster, HUD is waiving 
24 CFR 1003.207(b)(1)(i) and authorizing the use of ICDBG funds for the 
purchase of equipment necessary to carry out ICDBG eligible activities 
that assist with clearance, rehabilitation, construction, and other 
uses related to housing, public facilities, improvements, and works, 
and other disaster-recovery related purposes. Equipment must be used 
for authorized program purposes, and any proceeds from the disposition 
of equipment will be considered ICDBG program income. HUD may issue 
further guidance in the future on the disposition of program income 
after grant closeout.
2. Emergency Payments for Up to Six Months (24 CFR 1003.207(b)(4))
    Under 24 CFR 1003.207(b)(4), the general rule is that ICDBG funds 
may not be used for income payments. For purposes of the ICDBG program, 
income payments mean a series of subsistence-type grant payments made 
to an individual or family for items such as food, clothing, housing 
(rent or mortgage), or utilities. However, ICDBG may be used to make 
emergency payments over a period of up to three months to the provider 
of such items or services on behalf of an individual or family.
    Low- and moderate-income families impacted by disasters may have an 
immediate need for short term rental assistance, mortgage assistance, 
utility assistance, food, clothing, and similar services.
    To provide additional relief to families impacted by disasters, HUD 
is waiving 24 CFR 1003.207(b)(4) to the extent necessary to allow ICDBG 
grant funds to be used to provide emergency payments for low- and 
moderate-income individuals or families impacted by a disaster. These 
grant funds may be used for items such as food, medicine, clothing, and 
other necessities, as well as rental, mortgage, and utility assistance, 
without regard for the 3-month limitation in 24 CFR 1003.207(b)(4), but 
for a period not to exceed six months, unless further approved in 
writing by HUD on a case-by-case basis.
    ICDBG grantees may establish lines of credit with third party 
providers (e.g., grocery stores) on behalf of specific beneficiary 
families, provided all expenses can be properly documented and all 
ICDBG funds used for this purpose are expended on eligible activities. 
In all cases, ICDBG grantees must ensure that proper documentation is 
maintained to ensure that all costs incurred are eligible. ICDBG 
grantees using this waiver flexibility must document, in their policies 
and procedures, how they will determine the necessary and reasonable 
amount of assistance to be provided.

C. 24 CFR Part 1006 (NHHBG)

1. Assistance to Middle-Income Families Impacted by Disaster (24 CFR 
1006.301(a))
    24 CFR 1006.301(a) describes families eligible for NHHBG assistance 
as low-income Native Hawaiian families who are eligible to reside on 
the Hawaiian homelands. Section 809(a)(2) of NAHASDA limits assistance 
for families who are not low-income to homeownership activities, as 
approved by HUD, to address a housing need that cannot be reasonably 
met without that assistance. Section 1006.301(d) requires DHHL to have 
written policies governing eligibility, admission, and occupancy of 
families for NHHBG-assisted housing.
    Disasters may devastate and displace Native Hawaiian families in a 
community of all incomes, make housing uninhabitable, damage community 
infrastructure, and result in loss of life and property. DHHL may find 
it in the public interest to aid non-low-income families that are 
displaced due to a disaster by using NHHBG funds to provide such 
assistance as temporary mortgage assistance, temporary rental 
assistance on or off the Hawaiian homelands, housing such families in 
hotels, motels, or similar facilities, providing such families with 
necessary relocation assistance, and more. To help alleviate the impact 
of disasters on Native Hawaiian communities, HUD is waiving 24 CFR 
1006.301(a) to allow DHHL more flexibility to provide NHHBG assistance 
to families that are middle income (defined as 120 percent of AMI), 
provided the assistance is for homeownership activities (which may

[[Page 476]]

include short-term rental assistance to displaced homeowners), is 
temporary in nature, and DHHL determines that the families are impacted 
by the disaster and that there is a need for housing for such family 
that cannot reasonably be met without such assistance.
    Under this waiver, Native Hawaiian families impacted by PDD can 
automatically be served provided their household income does not exceed 
120 percent of AMI, there is no duplication of benefits, and all 
eligible criteria in this waiver are met. All assistance must be 
temporary in nature. For instance, such families may receive temporary 
rental assistance that is time-limited pursuant to DHHL's policies but 
may not receive permanent tenant-based rental assistance with no 
specified end date. DHHL must ensure that NHHBG assistance provided 
does not result in a duplication of benefits. For example, DHHL should 
not pay for costs that are already covered by private insurance or 
other Federal or State funds or programs. Further, when providing this 
assistance, DHHL must maintain records documenting that all these 
criteria were met at the time that such assistance was provided. HUD 
encourages DHHL to update its written policies to allow middle-income 
Native Hawaiian families who are impacted by disasters covered by a PDD 
to be considered eligible for NHHBG homeownership assistance and 
include a definition for `temporary' assistance.
2. Income Verification (24 CFR 1006.320)
    24 CFR 1006.320 requires DHHL to have written policies regarding 
tenant and homebuyer selection and criteria related to eligibility for 
NHHBG assistance. Many families whose homes were damaged or destroyed 
by the disaster may not have any documentation of income. DHHL may 
modify its policy and procedures to streamline any income verification 
and documentation requirements for families impacted by PDDs. This may 
include allowing income self-certification over the phone (with a 
written record by the DHHL's staff), or through an email with a self-
certification form signed by a family. This waiver applies only to 
families impacted by PDDs whose income documentation was destroyed or 
made difficult to access by the disaster.

II. Instructions

    To use the waivers or flexibilities, grantees must provide 
notification in writing, preferably by email, to the Administrator in 
the ONAP Area Office serving their area before the grantee anticipates 
using the waiver or flexibility. The written notification should 
include the following details:
    <bullet> Requestor's Tribe/TDHE/DHH, name, title, and contact 
information.
    <bullet> Presidentially declared major disaster area(s) where the 
waivers will be used.
    <bullet> Date on which the grantee anticipates the first use of the 
waiver or flexibility, and its expected duration (which must include a 
specific end date),and
    <bullet> A list of the waivers and flexibilities the grantee will 
use.

III. Exceptions

    An IHBG, ICDBG, or NHHBG grantee within in a PDD may request an 
exception of a HUD requirement not listed in Section I of this notice. 
HUD will only consider such exception requests subject to statutory 
limitations and pursuant to 24 CFR 5.110.

IV. Period of Use for Waivers and Flexibilities

    Waivers and flexibilities provided in this Notice will remain 
available to grantees provided a grantee is using the waivers or 
flexibilities in response to the PDD or as part of the recovery process 
effort. HUD recommends that grantees clearly document the need for each 
waiver and flexibility in their records and ensure that a specific time 
period for which the grantee will use the waivers and flexibilities 
that the grantee specifies in its written notification to HUD, 
described in Section II of this Notice, is reasonably set and ties back 
to the response and recovery effort. If a grantee finds a need to 
extend the period for which it will use a waiver or flexibility beyond 
the end date initially set by the grantee in its initial written 
notification to aid in its ongoing recovery effort, the grantee should 
send HUD written notification of its intent to extend the end date. The 
request must also demonstrate to HUD's satisfaction that the new time 
period is reasonably set and ties back to the response and recovery 
effort.

V. Finding of No Significant Impact

    A Finding of No Significant Impact (FONSI) with respect to the 
environment has been made in accordance with HUD regulations at 24 CFR 
part 50, which implement section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).
    The FONSI is available for public inspection between 8 a.m. and 5 
p.m. weekdays in the Regulations Division, Office of General Counsel, 
Department of Housing and Urban Development, 451 7th Street SW, Room 
10276, Washington, DC 20410-0500. Due to security measures at the HUD 
Headquarters building, an advance appointment to review the docket file 
must be scheduled by calling the Regulations Division at 202-708-3055 
(this is not a toll-free number). Hearing or speech-impaired 
individuals may access this number through TTY by calling the Federal 
Relay Service at 800-877-8339 (this is a toll-free number).

VI. Paperwork Reduction Act

    The information collections referenced in this Notice have been 
approved by OMB pursuant to the Paperwork Reduction Act under, OMB 
Control Number 2577-0292.

Dominique G. Blom,
General Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 2021-28565 Filed 1-4-22; 8:45 am]
BILLING CODE 4210-67-P


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