21288 Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

24 CFR Part 1000

[Docket No. FR–4517–P–01]

RIN 2577–AC14

Revision to Cost Limits for Native

American Housing

AGENCY: Office of Public and Indian

Housing, HUD.

ACTION: Proposed rule.

SUMMARY: This proposed rule would

revise the way construction costs are

controlled in the Indian Housing Block

Grant (IHBG) program administered by

IHBG grantees, who are Indian Tribes or

their Tribally Designated Housing

Entities (TDHEs). It would replace the

system of HUD-established Dwelling

Construction and Equipment costs with

a choice between HUD-established Total

Development Costs or standards

established by the TDHE based on

standards in its geographic area. This

rule also would provide that the

construction, acquisition, or assistance

of non-dwelling buildings is either

subject to standards established by the

TDHE or to documentation of

comparability to the size, design and

amenities of similar buildings

constructed in the geographic area.

DATES: Comments Due Date: June 19,

2000.

ADDRESSES: Interested persons are

invited to submit comments regarding

this proposed rule to the Regulations

Division, Office of General Counsel,

Room 10276, Department of Housing

and Urban Development, 451 Seventh

Street, SW, Washington, DC 20410–

0500. Communications should refer to

the above docket number and title.

Facsimile (FAX) comments are not

acceptable. A copy of each

communication submitted will be

available for public inspection and

copying between 7:30 a.m. and 5:30

p.m. weekdays at the above address.

FOR FURTHER INFORMATION CONTACT:

Bruce Knott, Office of Native American

Programs, at 303–675–1600, extension

3302, or email him at the following

address: BrucelA.lKnott@hud.gov.

Persons with hearing or speech

impairments may access the above

telephone number via TTY by calling

the Federal Information Relay Service at

1–800–877–8339.

SUPPLEMENTARY INFORMATION:

Reason for the Proposed Change

Under the United States Housing Act

of 1937 (‘‘1937 Act’’) (42 U.S.C. 1437 et

seq.), the construction cost limits were

called Total Development Cost limits,

informally referred to as TDCs. These

limits included the total cost of

development, including both soft and

hard costs of construction.

Under the Native American Housing

Assistance and Self-Determination Act

(NAHASDA)(25 U.S.C. 4101 et seq.), the

new regulations provided for a new

system of construction cost limits called

Dwelling Construction and Equipment

costs, also referred to as DC&Es (see 24

CFR 1000.156). In response to concerns

expressed by tribes, the negotiated rule

making (neg reg) committee designed

DC&Es to begin from the same base

design as TDCs, but limit only the hard

costs of construction within five feet of

the foundation, believing this would

provide more flexibility in resolving

unusual site cost issues. When tribes/

TDHEs actually began utilizing DC&Es,

they found them to be a barrier in

providing housing as many tribes had

historically used part of the soft cost

allocation for the actual construction;

therefore, when the cost limits included

money for only the hard costs, the limits

were inadequate.

In response to these new concerns,

the National Office of Native American

Programs (NONAP) began working with

a tribal consulting group on the cost

limit issue in the fall of 1998. This

group was comprised of a tribal

representative from each of the ONAP

office jurisdictions, one HUD field staff

person, and two HUD Headquarters

staff. Their objective was to write

language that incorporated both the self

determination and affordable housing

intentions of NAHASDA. This group

wrote proposed changes for dwelling

cost limits. This language was mailed to

tribes and TDHEs for consultation in

January, 1999. This group then wrote

non dwelling cost limits and mailed

them to tribes/TDHEs for consultation

in April, 1999. The rule reflects

comments received during the

consultation and during HUD’s

clearance process.

Implications

If these proposed changes are adopted

in substantially the same form as below,

the Department will publish TDCs,

instead of the present DC&Es. The

tribes/TDHEs will choose whether to

use the published TDCs, or develop

their own standards, consistent with

this rule.

Findings and Certifications

Public Reporting Burden

The Paperwork Reduction Act of 1995

(44 U.S.C. 3501–3520) does not apply to

the proposed information collection

requirements contained in §§ 1000.158

and 1000.162 because HUD anticipates

that the requirements will apply to

fewer than 10 TDHEs.

Consultation With Indian Tribal

Governments

In accordance with Executive Order

13084, Consultation and Coordination

With Indian Tribal Governments, issued

on May 14, 1998, the Department has

consulted with representatives of tribal

governments concerning the subject of

this rule. As described above, the rule

originated from concerns brought to our

attention by tribal representatives. In

accordance with that Executive Order,

the docket file for this rulemaking

contains copies of written

communications submitted to HUD by

tribal governments.

Impact on Small Entities

The Regulatory Flexibility Act (5

U.S.C. 601–612) requires that an agency

analyze the impact of a rule on small

entities whenever it determines that the

rule is likely to have a significant

impact on a substantial number of small

entities. While many TDHEs may be

small entities, the effect of this rule

developed in consultation with tribal

representatives, will not be likely to

have a significant impact on a

substantial number of them. As

mentioned above, it is expected that

fewer than 10 TDHEs will be affected by

this rule. To the extent that small

entities will be affected, the impact is

expected to be beneficial, as a result of

the consultation that has taken place.

We encourage small entities to submit

comments, however, on ways that the

impact of the rule on them could be

minimized.

Environmental Impact

A Finding of No Significant Impact

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. The Finding of No Significant

Impact is available for public inspection

between the hours of 7:30 a.m. and 5:30

p.m. weekdays in the Regulations

Division at the address stated above.

Federalism Impact

The General Counsel, as the

Designated Official under section 6(a) of

Executive Order 13132, Federalism, has

determined that this rule does not

impose substantial direct compliance

costs on States or local governments or

preempt State law within the meaning

of the Executive Order. As a result, the

Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules 21289

rule is not subject to review under the

order.

Unfunded Mandates

The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1532) establishes

requirements for Federal agencies to

assess the effects of their regulatory

actions on State, local, and tribal

governments and the private sector.

This proposed rule does not impose a

Federal mandate that will result in the

expenditure by State, local, or tribal

governments in the aggregate, or by the

private sector, of $100 million or more

in any one year.

Regulatory Review

The Office of Management and Budget

(OMB) has reviewed this proposed rule

under Executive Order 12866,

Regulatory Planning and Review, issued

by the President on September 30, 1993.

OMB determined that this rule is a

‘‘significant regulatory action’’ as

defined in section 3(f) of the Order

(although not an economically

significant regulatory action under the

Order). Any changes made in this

proposed rule after its submission to

OMB are identified in the docket file,

which is available for public inspection

during regular business hours in the

Regulations Division, Office of General

Counsel, Room 10276, U.S. Department

of Housing and Urban Development,

451 Seventh Street, SW, Washington,

DC 20410.

Catalog

The Catalog of Federal Domestic

Assistance number for this program is

14.867.

List of Subjects in 24 CFR Part 1000

Aged, Community development block

grants, Grant programs—housing and

community development, Grant

programs—Indians, Indians, Individuals

with disabilities, Low and moderate

income housing, Reporting and

recordkeeping requirements.

Accordingly, HUD proposes to amend

part 1000 of title 24 of the Code of

Federal Regulations as follows:

PART 1000—NATIVE AMERICAN

HOUSING ACTIVITIES

1. The authority citation for part 1000

continues to read as follows:

Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C.

3535(d).

2. Revise § 1000.156 to read as

follows:

§ 1000.156 Is affordable housing

developed, acquired, or assisted under the

IHBG program subject to limitations on cost

or design standards?

Yes. Affordable housing must be of

moderate design. For these purposes,

moderate design is defined as housing

that is of 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.

The local determination of moderate

design applies to all housing assisted

under an affordable housing activity,

including development activities (e.g.,

acquisition, new construction,

reconstruction, moderate or substantial

rehabilitation of affordable housing and

homebuyer assistance) and model

activities. Acquisition includes

assistance to a family to buy housing.

3. Add new §§ 1000.158, 1000.160,

and 1000.162 to read as follows:

§ 1000.158 How will a NAHASDA grant

recipient know that the housing assisted

under the IHBG program meets the

requirements of § 1000.156?

(a) A recipient must use one of the

methods specified in paragraph (b) or (c)

of this section to determine if an

assisted housing project meets the

moderate design requirements of

§ 1000.156. For purposes of this

requirement, a project is one or more

housing units, of comparable size and

design, developed with assistance

provided by the Act.

(b) The recipient may adopt written

standards for its affordable housing

programs that reflect the requirement

specified in § 1000.156. The standards

must describe the type of housing,

explain the basis for the standards, and

use similar housing in the Indian tribe’s

general geographic area. Units with the

same number of bedrooms within a

project must be comparable with respect

to size, cost, and amenities. For each

affordable housing project, the recipient

must maintain documentation

substantiating compliance with the

adopted housing standards. The

standards and documentation

substantiating compliance for each

activity must be available for review by

the general public and, upon request, by

HUD. Prior to awarding a contract for

the construction of housing or beginning

construction using its own workforce,

the recipient must complete a

comparison of the cost of developing or

acquiring/rehabilitating the affordable

housing with the limits provided by the

TDC discussed in paragraph (c) of this

section and may not, without prior HUD

approval, exceed by more than 10

percent the TDC maximum cost for the

project. In developing standards under

this paragraph, the recipient must

establish, maintain, and follow policies

that determine a local definition of

moderate design which considers:

(1) Gross area;

(2) Total cost to provide the housing;

(3) Environmental concerns and

mitigations;

(4) Climate;

(5) Comparable housing in

geographical area;

(6) Local codes, ordinances and

standards;

(7) Cultural relevance in design;

(8) Design and construction features

that are reasonable, and necessary to

provide decent, safe, sanitary and

affordable housing; and

(9) Design and construction features

that are accessible to persons with a

variety of disabilities.

(c) If the recipient has not adopted

housing standards specified in

paragraph (b) of this section, Total

Development Cost (TDC) limits

published periodically by HUD

establish the maximum amount of funds

(from all sources) that the recipient may

use to develop or acquire/rehabilitate

affordable housing. The recipient must

complete a comparison of the cost of

developing or acquiring/rehabilitating

the affordable housing with the limits

provided by the TDC and may not,

without prior HUD approval, exceed the

TDC maximum cost for the project.

§ 1000.160 Are non-dwelling buildings

developed, acquired or assisted under the

IHBG program subject to limitations on cost

or design standards?

Yes. Non-dwelling buildings must be

of a design, size and with features or

amenities that are reasonable and

necessary to accomplish the purpose

intended by the buildings. The purpose

of a non-dwelling building must be to

support an affordable housing activity,

as defined by the Act. These limits

apply to buildings such as community

facilities and office space; they do not

apply to structures related to utilities or

power supply.

§ 1000.162 How will a recipient know that

non-dwelling buildings assisted under the

IHBG program meet the requirements of

1000.160?

(a) The recipient must use one of the

methods described in paragraph (b) or

(c) of this section to determine if a nondwelling building meets the limitation

requirements of § 1000.160. If the

recipient develops, acquires, or

rehabilitates a non-dwelling building

with combined funds (from NAHASDA

and other sources), then the cost limit

standard established under these

regulations applies to the combined

21290 Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules

activity. If funds are being combined

from two different sources, the

standards of the funding source with the

more restrictive rules apply.

(b)(1) The recipient may adopt written

standards for non-dwelling buildings.

The standards must describe the type of

building and must clearly describe the

criteria to be used to guide the cost, size,

design, features, amenities, performance

or other factors. The standards for such

buildings must be able to support the

reasonableness and necessity for these

factors and to clearly identify the

affordable housing activity that is being

provided.

(2) When the recipient applies a

standard to a particular building, it must

document the following:

(i) Identification of targeted

population to benefit from the building;

(ii) Identification of need or problem

to be solved;

(iii) Affordable housing activity

provided or supported by the building;

(iv) Alternatives considered;

(v) Provision for future growth and

change;

(vi) Cultural relevance of design;

(vii) Size and scope supported by

population and need;

(viii) Design and construction features

that are accessible to persons with a

variety of disabilities;

(ix) Cost; and

(x) Compatibility with community

infrastructure and services.

(c) If the recipient has not adopted

building program standards specified in

paragraph (b) of this section, then it

must demonstrate and document that

the non-dwelling building is of a cost,

size, design and with amenities

consistent with similarly designed and

constructed buildings in the recipient’s

general geographic area.

Dated: March 27, 2000.

Harold Lucas,

Assistant Secretary for Public and Indian

Housing.

[FR Doc. 00–9929 Filed 4–19–00; 8:45 am]

BILLING CODE 4210–33–P