[Federal Register Volume 74, Number 102 (Friday, May 29, 2009)]
[Notices]
[Pages 25761-25763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12483]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5325-N-01]


Waiver of Certain Requirements in the Competitive and 
Noncompetitive Native American Housing Block Grant and the Indian 
Community Development Block Grant Programs Under the American Recovery 
and Reinvestment Act of 2009

AGENCY: Office of the Assistant Secretary for Public and Indian 
Housing, HUD.

ACTION: Notice.

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SUMMARY: This notice implements actions to facilitate the expedited 
award and use of economic stimulus funds made available under the 
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, approved 
February 17, 2009) (Recovery Act) for Native Americans. Accordingly, 
this notice identifies and advises the public of HUD statutes and 
regulations governing HUD's Native American Housing Block Grant (NAHBG) 
program, also known as the Indian Housing Block Grant (IHBG) program, 
and the Indian Community Development Block Grant (ICDBG) program that 
have been waived or temporarily suspended or deferred. These waivers 
are authorized in order to facilitate the expedited delivery and use of 
Federal Recovery Act funds for NAHBG and ICDBG housing and community 
development initiatives that are two of several components authorized 
by the Recovery Act to help stimulate the economy and alleviate the 
effects of a national recession. These waivers apply only to assistance 
appropriated by the Recovery Act, both formula and competitive, and do 
not apply to fiscal year appropriations for the IHBG and ICDBG programs 
under the Omnibus Appropriations Act, 2009 (Pub. L. 111-8, approved 
March 11, 2009). Tribes, Tribal organizations, and Tribally designated 
housing entities (TDHEs) that administer NAHBG and ICDBG programs 
should review this notice to determine which program requirements if 
waived, will ensure that Recovery Act funds can be awarded quickly and 
efficiently to meet the objectives of the Recovery Act. The waivers 
listed in this notice are applicable only to Recovery Act funds and 
will remain in effect until September 30, 2012. Tribes, Tribal 
organizations, and TDHEs awarded Recovery Act funds for NAHBG or ICDBG 
activities have been granted waiver relief from statutes or regulations 
identified in this Notice.

DATES: Effective Date: May 29, 2009.

FOR FURTHER INFORMATION CONTACT: Deborah Lalancette, Director, Office 
of Grants Management, Office of Native American Programs, Department of 
Housing and Urban Development, 1670 Broadway, 23rd Floor, Denver, CO 
80202, telephone number (303) 675-1600 ext. 1625. Persons with hearing 
or speech impairments may access this number via TTY by calling the 
Federal Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background Information

    The Recovery Act was passed in recognition of the need to quickly 
stimulate the American economy in light of the adverse events occurring 
in the financial and housing markets over the preceding months. The 
stated goals of the Act are to: (1) Preserve and create jobs and 
promote economic recovery; (2) assist those most impacted by the 
recession; (3) provide investments needed to increase economic 
efficiency by spurring technological advances in science and health; 
(4) invest in transportation, environmental protection, and other 
infrastructure that will provide long-term economic benefits; and (5) 
stabilize State and local government budgets, in order to minimize and 
avoid reductions in essential services and counterproductive state and 
local tax increases. The Act specifies that Federal departments and 
agencies shall manage and expend the funds made available in the Act in 
a manner that commences expenditures and activities as quickly as 
possible consistent with prudent management.
    HUD's Office of Public and Indian Housing (PIH) examined the 
statute and regulations governing the NAHBG and ICDBG programs and 
recommended waiver or temporary suspension or deferral of the statutes 
and regulations that PIH believes could impede Tribes, Tribal 
organizations, or TDHEs in their efforts to expeditiously implement 
Recovery Act projects and activities. Recipients of NAHBG and ICDBG 
Recovery Act funds may defer compliance with the requirements listed in 
this notice for a period of 36 months under the notification process 
described in this notice.
    For several of the regulations listed in this notice for which a 
waiver was granted, HUD did not waive the requirements entirely but 
deferred compliance until such time as compliance may be feasible. HUD 
does not want the time and resources of Tribes, Tribal organizations, 
and TDHEs diverted by requirements that are important but can be 
deferred or waived to ensure Recovery Act funds are awarded and placed 
under contract, in order to generate jobs and economic activity. As the 
economic recovery period proceeds, HUD may identify other statutory or 
regulatory waivers for which waiver is needed or determine that other 
alternative requirements may be necessary to assist with expeditious 
use of Recovery Act funds. Any additional HUD waivers or other 
alternative requirements will be announced by direct notice to Tribes 
and TDHEs and by Federal Register publication. If Indian Tribes and 
TDHEs identify other regulations that they believe should be waived, 
they should seek a waiver by submitting a waiver request to their Area 
Office of Native American Programs.

II. Authority To Grant Waivers

    Generally, waivers of HUD regulations are handled on a case-by-case 
basis. The Recovery Act provided HUD with separate waiver authority. 
For funds appropriated for the NAHBG program, the Recovery Act 
authorizes HUD to waive or specify alternative requirements for any 
provision of any statute or regulation in connection with the 
obligation by the Secretary for the use of these funds (except 
requirements related to fair housing, non-discrimination, labor 
standards, and the environment), upon a finding that such a waiver is 
necessary to expedite or facilitate the use of such funds. As for funds 
appropriated for the ICDBG program, the Recovery Act authorizes HUD to 
waive or specify alternative requirements for any provision of any 
statute or regulation in connection with the obligation by HUD or the 
use by a recipient of these funds (except for requirements related to 
fair housing, nondiscrimination, labor standards, and the environment), 
upon a finding that such a waiver is necessary to expedite or 
facilitate the timely use of such funds and would not be inconsistent 
with the overall purpose of the statute.

III. Waivers

    The following statutory and regulatory waivers have been granted 
for recipients of NAHBG and ICDBG Recovery Act funds.

[[Page 25762]]

A. Statutory Waivers

Native American Housing Block Grant
    1. Indian Housing Plan (IHP) Submission Requirement. Section 
101(b)(1) of the Native American Housing Assistance and Self-
Determination Act (NAHASDA) of 1996 (25 U.S.C. 4101 et seq.) (NAHASDA) 
states that the Secretary may make a grant under the Act if an Indian 
Housing Plan (IHP) is submitted and determined to comply with the 
requirements of section 102 of the Act. Section 101(b)(2) provides the 
Secretary with waiver authority for a period of not more than 90 days. 
Under the Recovery Act, NAHBG formula funds will be provided as an 
amendment to the FY 2008 IHP as this is the fastest most efficient way 
to allocate Recovery Act funds. Sections 101(b)(1) and (2) are waived 
for any Tribe or TDHE that did not submit an IHP in FY 2008 and did not 
receive funding in FY 2008 under NAHASDA. A Tribe or TDHE that did not 
receive IHBG funds in FY 2008 need only submit an IHP amendment in 
order to receive Recovery Act funds. This waiver will ensure that 
Recovery Act funds are provided to all eligible applicants in an 
expedited manner.
    2. Local Cooperation Agreement. Section 101(c) states that grants 
provided under NAHASDA may not be used for rental or lease-purchase 
homeownership units that are owned by the recipient unless the 
governing body of the locality within which the property that is 
subject to assistance is or will enter into an agreement with the 
recipient for the Tribe providing for local cooperation. Section 101(c) 
states that this provision may be waived by the Secretary if the 
recipient has made a good faith effort to fulfill the requirements of 
this Act and agree to make payments in lieu of taxes to the appropriate 
taxing authority. This Notice will enable Tribes that have made a good 
faith effort to fulfill the requirements of the Act to receive an 
expedited waiver so that they can develop projects quickly in their 
Indian area.

B. Regulatory Waivers

Native American Housing Block Grant
    1. 24 CFR 1000.156 and 1000.158; Total Development Cost (TDC) 
Limits. The current regulation states that affordable housing 
developed, acquired, or assisted under the IHBG program must be of 
moderate design. TDC limits are published annually to provide 
recipients with affordable housing cost standards. These standards can 
be exceeded by 10% with Area Office of Native American Program (ONAP) 
approval and can be exceeded further if Headquarters approval is 
obtained. Justification is required to be submitted by the Tribe to 
justify an increase in the TDC of a unit or project. A waiver of this 
provision is provided to allow Tribes to exceed the current TDC maximum 
by 20% without HUD review or approval if the Tribe maintains 
documentation that indicates that housing will be for low-income 
families and the design, size, and amenities are moderate and 
comparable to housing in the area. The regulatory requirements are also 
waived to permit the current TDC limits to be used for both single-
family and multi-family housing.
    2. 24 CFR 1000.232; Tribal Certification Requirement for IHP 
Amendments. The IHBG regulation at 24 CFR 1000.232 requires that a 
Tribal certification must accompany an IHP amendment when submitted by 
a TDHE to HUD. In many instances, a TDHE submits an IHP for several 
Tribes. At the time of the initial IHP submittal, Tribes certified that 
the TDHE is authorized to submit an IHP on its behalf. This waiver 
permits the TDHE to submit an amendment to an existing IHP without 
obtaining another certification from the Tribe. The request to waive 
this requirement is to expedite the IHP approval process and ensure 
that funds are provided to the Tribe as quickly as possible so that the 
timelines in the Recovery Act for obligation and expenditure of funds 
can be met.
Indian Community Development Block Grant
    1. 24 CFR 1003.302(a); Project Specific Threshold Requirements--
Housing Rehabilitation Standards. The ICDBG regulation at 24 CFR 
1003.302(a) requires that ICDBG applicants submitting applications for 
housing rehabilitation projects adopt, by Tribal resolution, 
rehabilitation standards and policies prior to submitting an 
application. This waiver permits those Tribal applicants who do not 
have standards and policies in place to submit an application and adopt 
such after the award. If awarded a grant under the Recovery Act 
program, submission of this documentation will become a grant 
condition. This waiver will ensure that an application for Recovery Act 
funds can be submitted promptly in response to a Notice of Funding 
Availability (NOFA). The requirement that project funds can be used to 
rehabilitate units where the homeowner's payments are current or the 
homeowner is current on an approved repayment period is not being 
waived. Area ONAP Administrators can still approve exceptions to this 
requirement on a case-by-case basis in accordance with the current 
regulatory requirement.
    2. 24 CFR 1003.302(b); Project Specific Threshold Requirements--New 
Housing Construction Standards. The ICDBG regulation at 24 CFR 
1003.302(b) requires that ICDBG applicants submitting applications for 
new housing construction projects adopt, by current Tribal resolution, 
construction standards prior to submitting an application. This waiver 
permits those Tribal applicants who do not have construction standards 
in place to submit an application and adopt such after the award. If 
awarded a grant under the Recovery Act program, submission of this 
documentation will become a grant condition. This waiver will ensure 
that an application for Recovery Act funds can be submitted promptly in 
response to a NOFA. The requirement that new construction can only be 
implemented through a non-profit organization may not be waived.
    3. 24 CFR 1003.302(b); Project Specific Threshold Requirements--
Available Housing Stock. In addition, 24 CFR 1003.302 (b) also provides 
that in order to use ICDBG funds to build new housing, a Tribe must 
demonstrate that: (1) No other housing is available in the immediate 
reservation area; (2) no other sources can meet the needs of the 
household; (3) rehabilitation of the unit occupied by the household(s) 
to be assisted is not economically feasible; (4) the household(s) is in 
overcrowded conditions; or (5) the household has no current residence. 
If awarded a grant under the Recovery Act program, submission of this 
documentation will become a grant condition. This waiver will ensure 
that an application for Recovery Act funds can be submitted promptly in 
response to a NOFA. The requirement that new construction can only be 
implemented through a non-profit organization may not be waived.
    4. 24 CFR 1003.302(c); Project Specific Threshold Requirements--
Economic Development Analysis. The ICDBG regulation at 24 
CFR1003.302(c) requires that ICDBG applicants submitting applications 
for economic development projects provide an analysis which, among 
other things, shows public benefit commensurate with the ICDBG 
assistance requested will result from the assisted project. Although 
the analysis requests several components, this waiver is only 
applicable to the following components: showing public benefit 
commensurate to ICDBG assistance; financial support from non-Federal 
sources committed prior to disbursement of Federal funds;

[[Page 25763]]

and not more than a reasonable rate of return on investment is provided 
to the owner. This waiver permits Tribal applicants to submit an 
application without these components and adopt such after the award. If 
awarded a grant under the Recovery Act program, submission of this 
documentation will become a grant condition. This waiver will ensure 
that an application for Recovery Act funds can be submitted promptly in 
response to a NOFA. All other analysis components remain required and 
must be submitted with the application and may not be waived. The 
components that must be submitted include the following: any grant 
amount provided will not substantially reduce the amount of non-Federal 
financial support for the activity; grant funds used for the project 
will be disbursed on a pro rate basis with amounts from other sources; 
and establishing the project is financially feasible and that it has a 
reasonable chance of success.
    5. 24 CFR 1003.303; Project Rating. The ICDBG regulation at 24 CFR 
1003.303 requires each project in an ICDBG application to meet project 
threshold requirements and then be scored based on five specific rating 
factors. The rating factors are capacity, need/extent of the problem, 
soundness of the approach, leveraging of resources, and 
comprehensiveness and coordination. Recovery Act funds under the ICDBG 
program can only be awarded to recipients who received ICDBG funding in 
FY 2008. These recipients have already demonstrated the capacity to 
administer the grants. In recognition of strict funding obligations 
deadlines in the Recovery Act and the specific Recovery Act provisions 
for awarding funds, this section is waived so that the NOFA can be 
drafted to delete the applicant capacity factor in the ICDBG NOFA and 
include a new factor to address the requirements of the Recovery Act.
    6. 24 CFR 1003.604; Citizen Participation Requirements. The ICDBG 
regulations at 24 1003.604(a)(2) require applicants to consult with 
residents prior to submitting their funding applications. The 
consultation requirements have the potential to delay the ability of 
ICDBG recipients to expeditiously facilitate Recovery Act funds for 
housing and community development needs. Accordingly, this section is 
waived so that the Tribe will not have to hold one or more meetings to 
obtain the views of residents on community development and housing 
needs. Tribes will be required to meet the citizen participation 
requirements by publishing or posting information on their plans to use 
Recovery Act funds and accepting comments. However, comments will not 
have to be submitted prior to the application deadline date. The Tribe 
will be required to certify in its application that information has 
been published or posted for residents of the community in order to 
meet the citizen participation requirement.

    Dated: May 4, 2009.
Paula O. Blunt,
General Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. E9-12483 Filed 5-28-09; 8:45 am]
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